[DMCA-Activists] IIM 2 Day 1: WIPO + Development Agenda

[Seth Johnson]

-------- Original Message --------
Subject: [A2k] Blogging WIPOand the Development Agenda, Second
IIM (Day 2)
Date: Thu, 23 Jun 2005 04:15:05 -0400 (EDT)
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Blogging WIPOand the Development Agenda, Round 2
The Second IIM, June 20-22: Day 2
Notes by:
Ren Bucholz, ren at eff.org, Electronic Frontier Foundation [RB]
Thiru Balasubramaniam, thiru at cptech.org, Consumer Project on
Technology
[TB]

[NOTE: This is not an official transcript. Any errors and
ommissions are regretted.]

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-------------------

WIPO Second IIM, June 20-22: Day 2

10:20 A.M.

~ African Union: The views expressed by Morocco (African Group)
and Benin (LDCs) are in line with our views.

NEPAD has drawn a new framework for cooperation.  We recognized
that IP is one of the major elements of development and should be
at the center of all development processes.  It is true that WIPO
has made major commitments to development and the time has come
for WIPO to be more involved.

~ Union for the Public Domain:

~ World Blind Union: This is the first time that WBU has
participated in the IIM. Expresses concern that none of the
country proposals deal with people with disabilities, and
suggests that a truly inclusive development agenda would address
this oversight.

Q: So, what might this have to do with copyright?  A: Improperly
deployed copyright regimes can hinder the employment and access
to knowledge of disabled people.  Cites lack of standard exchange
formats for people with sight problems and the poorly designed
and implemented TPMs that keep people with disabilities from
accessing information.

Hopes that a finally formulated DA will address the needs of the
disabled community and will take concrete steps to address those
problems.

~ European Patent Office: I would like to make two comments

1) General - In parallel to trying to get IP to foster
development needs, we need to use the currently available
possibilities.  Many states use the IP system to foster
development.  The IP system has an enabling aspect.  So how do we
use the system for technology transfer?  And why don't we see
these transfers happening in a more organized way?  Time is
short, and we should make that happen.

2) Specific - Regarding the current debate - if you take an
outside observer to these discussions, there is more common
ground than differences between the Brazilian and Canadian
proposals to structure the current debates.  We should use all
the available tools to achieve consensus.  That is why I
appreciate the proposal by the International Bureau to have
informal consultations.  Let us not restrict ourselves to formal
proceedings.

~ Chair: On structure, Brazil & its allies have submitted a new
proposal. Keeping in mind this and the other proposals, I would
like to circulate a room document that has "clusters" of main
themes.  We can add anything that the chair missed.  That
document is available here:

<a
href="http://homes.eff.org/~renbucholz/wipo/brazil_list1of2.png";>Page
1</a> | <a
href="http://homes.eff.org/~renbucholz/wipo/brazil_list2of2.png";>Page
2</a>

-=-=-=15 minute break=-=-=-

~ Chair: Passes to Bahrain.

~ Bahrain: We need a little more time for consultation.  We do
agree with your proposal, but more time would be helpful.

~ Canada: We see a combination of Canada's proposal and other
proposals. This clustering and possible topics paper does not
have legal status.

~ Brazil: We feel that there has been a "butchering" of the
proposals, especially of our own, broader proposal.

We should get a complete listing of the concrete proposals
presented to the IIM. This may avoid a lengthy negotiation as to
what category each item should be assigned to.

~ Mexico: Feels that the chair's suggestion helps.

~ India:  We thank you for this attempt to bring some some
structure to these discussions.  We thought there was already a
structure based on the proposals presented.  As Brazil noted, the
mandate of this IIM is to consider specific proposals.  We
recognize the difficulty that could come up and indeed has come
up with the clusterization of issues.  A lot of the items that
have identified been put in the first cluster should belong in
another cluster.  A lot of time could be spent arguing as to what
item should beling in what cluster.

We strongly support the discussion of the actual proposals
presented to the IIM.  We should not waste time arguing as to
what item belongs in what cluster.

Maybe we should maybe discuss the proposals at random so no one
proposal is marginalized at the expense of others.

~ Luxembourg: Prefer Canadian proposal, but are also open to the
Brzillian proposal of listing topics.

~ Chile: As we stated yesterday, we are comfortable working with
a list as proposed by Brazil.  We would like to see the list
Brazil has proposed.

~ France: This is a step forward.  If we don't have structure, we
will waste time. We therefore support the Chair's approach.

~ Colombia: We like the flexibility of Brazil's proposal, and we
would go along with it.

~ Argentina: We need some clarification.  What is the problem? 
There has been a clear mandate from the General Assembly to
consider the Development Agenda.  The proposals provide a basis
for discussions.  We already know the general and specific issues
at hand. We are not here to negotiate the content of debate. The
original GFoD proposal was presented in September.  Member States
have had ample time to consider these documents.  We need to
delve into the substance of the debate.  Due to the attitude of
certain delegations, these discussions are stalling.

~ Morocco: Summary of yesterday's African group statement.

~ Pakistan: What we have here are talks about talks.  We also
have another option. We have been given a mandate by the GA, and
that mandate was unambiguous. That was to examine the proposals
with regard to the development agenda.  We desire a list of
proposals, like that considered by Brazil.  We also requested
yesterday that the chairman provide some direction, and are
greatful with his attempts so far. However, there seems to be
some resistance from some countries. Clustering forces a
particular lens on each proposal, while allowing each proposal to
be aired separately allows a particular country to control that
lens.  We hope that you will start that substantive discussion,
because we could continue this particular, fruitless line of
reasoning indefinitely.

~ Chair: I still have three delegations on my list, and we are
going to take a short break for me to focus my thoughts.  When a
writer writes a novel, he organizes it into chapters.  This
seemed logical to us to present these different chapter/clusters
without prejudice to the actual topics.  We could draw lots, go
chronologically, or whatever.  I agree that we should move
forward.

~ United Kingdom: The benefits of the meeting should outweigh the
costs of the meeting.   We are happy to discuss our proposal on a
proposal by proposal basis. One suggestion that we have is to
discuss the role and mandate of WIPO first which is least
controversial.  We are flexible on how to move forward.

~ Iran: We suggest a method where we cluster issues within each
proposal.

~ Chair: We have received a document from Brazil, and the chair
wants to ask them to speack on the document.

~ Kenya: Supports proposal of Brazil.

~ Bahrain: I was unclear - we support immediate debate.  When we
asked for more time, it was to be able to reorganize our document
into your clusters.

~ Brazil: The proposal we have made has not yet been distributed
to all Member Countries.  It is an alternative to
categorization.  It is a listing of action-oriented proposals. 
The order is not important to us.  A lottery would be fine.  The
action-oriented proposals are actually contained in the documents
submitted to the IIM.  This is the principle we call for.  This
is not an exhaustive list nor is it written in stone.

~ Chair: If we have some flexibility, we could use this list to
begin.  We can take a break to consider the proposal.  I hope
this list circulated by Brazil is accepted by Members.

-=-=-=BREAK=-=-=-

~ US: Glad to see Brazillian document, however, they have a
problem with how their own proposals are cahracterized.  Would
like to propose that the US have the ability to characterize
their own proposal, and suspect that other countries would like
this opportunity as well.

[RB: Note that despite the invitation to comment, nobody else has
a problem.  On Day 3 one country asks to have their own proposal
joined with another.]

~ Morocco: Thanks Brazil.

~ India:  We would like clarification by the coordinator of the
African Group (Morocco).  We do not recall a written proposal
submitted by the African Group to the IIM. We are of the
understanding that we are to discuss proposals that were
submitted in writing to the IIM.

Regarding the chair's recommendation that we discuss "less
controversial" aspects first,  this is somewhat subjective
depending on the point of view of the respective delegations.

~ Bahrain: We endorse the Brazillian proposal in principle,
though we note that some points from our proposal were ommitted. 
Reserve the right to resubmit.

~ Morocco: My last comment was the essence of yesterday's African
Group statement. It was our understanding that the Brazillian
list was an account of particular concerns.  If this document is
in fact closed, we support the first document of clusters (the
Chair's submission).

~ Algeria: Offers support for Morocco's statement, and reminds
that the African group's concerns must be considered one way or
another.

~ India: One of the important features of the list presented by
Brazil is that it's based on written proposals submitted to the
IIM.  We made our intervention in a positive spirit.  Perhaps the
African Group statement could be recast in a written form and
submitted as a proposal with actionable elements.

~ Brazil: Would like to further elaborate on the ideas behind our
document.  It is an open document.  It is not an exclusive list. 
The document put forth by GFoD is convergent with the African
Group concerns and some members of the GFoD are members of the
African Group.  It is very important to work on the basis of
formal documents that were presented by Members.

~ Chair:  I thank all of you for your efforts.  This list
presented by Brazil is an open list.  The Presidency will use it
to improve on the language and fine-tuning it and improving it. 
We will try to set up a mechanism to accelarate the debate.  All
subjects will be discussed.

-=-=-=LUNCH=-=-=-

Chair: Hopes we can continue the positive energy from this
morning's session. Sometimes a good lunch can make you drowsy,
but he hopes that this is not the case with this group.

Received only one proposal over lunch, which was from the US and
is intended to redraft item 10.  Hopes that we get more.  These
proposals will allow us to draft a document for the GA that
indicates what work remains to be done.

Would like to spend 1 hour on each topic, starting from least
controversial.  Hopes that we will review at least 9 by end of
day tomorrow.  Tomorrow afternoon will be spent reviewing the
chair's report.  We'll start in this order:

1) Item 10, the US would prefer to say [garbled]
2) Item 8
3) Item 13

~ Argentina: We are not calling into question the changed
proposed.  We think that it will be helpful if we can find out
what terms are used to evaluate how controversial a topic may
be.  We think that item 4 is the most important and basic. 
Thinks that moving between topics without any links between them
raises possiblity that the discussion will suffer.

~ Chair: Sees no problem with that.  Entirely open to allowing
delegations to express views on topics, and thinks that the order
is unimportant.  As Argentina says, item 4 is clearly linked to
item 10.

What I would like to know is the views of various delegations on
these various proposals specifically item 10 (Brazilian text and
United States text)

~ India: Would like more clarification on how items are
determined controversial or noncontoversial.  Would like
especially to have an early "heads-up" on where things stand. 
Thinks that it would take no more than 15 minutes to run through
the whole list.

~ US: In light of new comments, does the chair still want the US
to present its change on Item 10?  Wants clarification about the
Indian delegation's suggestion - not familiar with this "initial
survey."  Could India explain?

~ Chair: The US should present first.  Then we'll forget the word
"controversial" and simply go by the choice of the chair.

~ US: Their proposal is premised on recognizing the benefit of IP
and WIPO in development.  It is not just about technical
assistance.  It is instead designed to build on existing
successful work by bringing together all stakeholders. Proceeds
to outline the two main arms of the proposal: a WIPO Partnership
Database and a WIPO Partnership Office.

~ Mexico: Thinks that the proposal put forward by Argentina is an
"excellent proposition" as there are many items that are
interlinked.  However, Item 4 is more general than Item 10 -
perhaps we should discuss them both now.

On Item 10 bis. [RB: The US's amended Item 10], it is important
to think of costs for the database and website and office. 
Perhaps we should keep our feet on the ground.  Who contributes
this financing?  How much do we pay?  Where do we get these
resources?

~ Canada: Wishes to address 10 bis.  With regard to technical
cooperation, it's important that these be as efficient as
possible.  With that in mind, Canada finds the US proposal
compelling and wishes to pursue it further.

~ Argentina: We've already said that we believe that technical
assistance should be linked to other elements that we do not
believe are found in the US proposal.  We think that technical
assistance should be mainly based on needs and requets from
member states.  That's why the GFoD paper suggests real
evaluation of these efforts.

~ Pakistan: Wishes to share their thoughts on US proposal.  We
agree that technical assistance is an important element of WIPO's
work.  This is something already on its way with respect to the
Secretariat's work.  The US proposal would strengthen the
technical assistance work which has improved in the last two to
three years.

An establishment of the WIPO partnership office and the database
is fine. However, we find the conspicuous absence of certain
ideas in these discussions. There needs to be a change in mindset
in these discussions of the WIPO DA which would have effects upon
the US technical assistance program.  We are talking about having
development in the IP system, but  technical assistance is a but
small part of the Development Agenda proposal.

~ United Kingdom:  The US proposal is an important contribution
to WIPO's efforts to provide effective technical assistance.  We
called for a proper evaluation of WIPO's technical assistance.

~ Chair: I want to thank Argentina for its intervention calling
making linkages between the different of the action-oriented
proposals by Member States.

~ Brazil:  We would like to briefly emphasize the points that
have been made by previous delegations.

The friends of development (IIM/1/4) mentioned information
sharing as being useful in the field of technical cooperation.  
This was never intended as a stand-alone proposal.  Information
sharing should be accompanied by principles and guidelines for
pro-development technical cooperation.

~ Sweden:  We welcome and support the US proposal and align
ourselves with the United Kingdom.  A key principle of technical
cooperation is that it should be demand driven.

~ Australia: Garbled [TB: Basically supports the US proposal]

~ Japan: We think the US proposal to establish a database is
positive.

~ United States:  Certain private sector interest would be
involved with the donor agencies.  However, it would be up to the
developing countries which programs to implement [i.e. "demand
driven"].  Due to the structure of the proposal, much of this
could be done through extra-budgetary resources and the existing
budget of WIPO.

~ Chair: I would like to ask a member of the GFoD to elaborate on
Item 4.

~ Brazil:  The GFoD noted that WIPO plays an important role in
the implementation of the TRIPS Agreement in developing
countries.  The legal and technical assitance activities of WIPO
should include the implementation of the pro-development aspects
of the TRIPS Agreement including Articles 7,8, 13, 31, and 40 and
the Doha Declaration on the TRIPS Agreement and Public Health.

These principles and guidelines for development and
implementation of technical assistance would act as a roadmap
(WO/GA/31/11 and IIM/1/4).  The UK IPR Commission looked at these
questions related to WIPO's technical assistance.  There is
agreement that the principles and guidelines that we have
identified in our document are correct.  These principles and
guidelines are not an exhaustive list.

~ UK: Indicates concern about some proposed guidelines, and again
proposes that the PCIPD is the ideal forum for discussing these
concerns.  This would also allow for the discovery of how other
committees provide technical assistance.

~ Canada: At the last meeting, several countries commended WIPO's
work on technical assistance & cooperation.  Canada prefers a
demand-driven approach.  Often, technical assistance is delivered
in isolation from other development work.  We wish for rational
WIPO policy.  Therefore, we think that this should be discussed
in PCIPD.

~ India: Surprised that the previous two speakers wished to push
this discussion to the PCIPD.  With respect to the GFoD proposal,
it presents the fundamental question of whether technical
cooperation can actually be used to aid development. This
question clearly does *not* belong in PCIPD, as it refers to a
more meta-level consideration that encompasses the role of PCIPD.

As for the US proposal, this is straight down the street of
technical assistance. "Partnering" with a DC with an industry
group is likely to be uncomfortable if what the country really
needs is less protection in a particular area.

India is shocked, however, that the US and UK would jump to push
the GFoD proposals into the PCIPD when the US database proposal
is so clearly in that realm.

-=-=-=COFFEE BREAK=-=-=-

~ UK: Wishes to explain  PCIPD is a "legally set up body" that is
already in existence.  All members of WIPO can participate, and
it has an extremely broad mandate.  Their proposal is that this
body, properly reinvigorated, is the ideal venue for this
discussion.  They noted earlier that the US proposal should be
pursued there as well.  They were therefore surprised that India
was surprised.

~ Argentina: We need to put ourselves in the proper context.  The
proposal for a development agenda for WIPO does not have separate
components - it is a whole.  The GFoD are not proposing a
technical procedure, but are rather trying to get to a conceptual
framework for this work.  We also explain mechanisms, and those
are covered in issues 11-13.  With regard to sending these themes
to PCIPD, we also have a mandate that is clear.  The assemblies
can later take our agenda and make other decisions on what to do.

Reiterates principles in GFoF proposal from first IIM.

Why would we leave these to another body when our mandate is so
clear here?

~ Iran: We need some guidelines and principles in this body
before dropping the whole thing in PCIPD.

~ Australia: This delegation agrees with the UK on the scope of
PCIPD.  If the concern is that the PCIPD has not traditionally
worked on these issues, this would be an opportunity to
"mainstream" these issues there.  It could also encompass the US
proposal.

~ Algeria: Agrees with Argentina, India, Pakistan: we have a
mandate.  If we cut up the DA, then tomorrow we'll have to put it
back together at some point. The GA asked us for set of
principles.  Technical assitance isn't appropriately before this
body

~ US: Has concerns about Item 4 on principles.  These stem from
some troubling premises, for instance GFoD para 59.  His
delegation doesn't share these premises. For instance, he doesn't
think that he's ever heard a delegation say that IP is an end in
itself.

In light of these issues, US would have an enormous amount of
discussion about those principles.  This is probably where the UK
is coming from when they suggest putting this into the PCIPD. 
Does believe that we are currently meeting their mandate to
examine proposals and report to the General Assembly, but that
doesn't mean that we have to have completed all the work
contained in these proposals.

~ Chair: Pakistan next, then we'll spend the last 30 minutes on
Item 13.

~ Pakistan: In our view, there is currently not a development
orientation in the delivery of technical assistance.  Though
we've appreciate the assistance they've always gotten, there are
gaps.  The GFoD proposal addresses these gaps.

Second, would basically like to disagree with punting to PCIPD
for two reasons. First, the PCIPD is currently structured towards
maximizing IP.  Second, having a development agenda for the
entirety of WIPO has been handed to the IIM. Passing the buck is
not the way to deal with it.

On technical assistance, note that the GFoD proposal would
facilitate foundational studies on whether or not it is working.

~ Trinidad & Tobago: Suggests going through each proposal - if
not at this meeting then the next - and say where there is
misunderstanding in the way proposals are phrased.  We perhaps we
can discuss these proposals substantively.  Then we can
effectively try to achieve some method of consensus.

~ Mexico:  The delegate from Trinidad & Tobago and I are in
agreement.  In fact, I was just going to submit this method of
proceeding.

We all know that every topic in front of this body is very
complex. Tomorrow, we will have to submit a report that says we
had a general discussion of these points, but we were unable to
reach consensus on any of them.

It seems to me that we should not lose sight that there is a link
between IP and technological policy.  This is found in items 2,3,
and 4.

~ Nigeria: We are discussing the issue of technical assistance. 
We need to discuss what constitutes technical assistance.  Would
the provision of one or two computers be considered technical
asssitance?  Would a lecture tour from a developed country to a
developing country be considered technical assistance.  Should
technical assistance be advanced to further strengthen
enforcement measures or should it be used to help countries to
develop their latent potential.

The US proposal is predicated upon on the assumption that ICT
facilities exist on an equal footing in all countries.  This is
not the case.

There is an initiative put forth by the African Group on the
Digital Solidarity Fund to bridge the digital divide.  Perhaps
the US could help to fund this.

~ Brazil:  We would like to make a procedural remark.  We thought
we were at the stage where we could discuss substance.  We are a
little concerned by remarks made by some that the IIM is not the
appropriate forum in which to address certain proposals such as
the GFoD principles and guidelines for the development and
implementation of technical assistance.  We have a clear mandate
from the General Assembly to consider these substantive
proposals.  This is the forum tasked to discuss these principles
and guidelines.  We take notice the constructive proposal put
forth by Trinidad & Tobago.   We note that the UK has suggested
that PCIPD be the forum for this discussion.  The GFoD has
already responded in IIM/1/4 stating clearly that they object to
this approach.  The IIM has a mandate from the General Assembly
and we should have substantive discussions on the proposals and
not discuss whether this is the appropriate forum or not.

~ Colombia: Regarding the action-oriented proposals list: for us,
it is important to distinguish a process of decisionmaking from
the execution of those decisions.  We think that the proper body
for the former is certainly the IIM, not the PCIPD. Perhaps the
PCIPD could be given a mandate to implement the decisions that
are made.  We think it is very important to separate these
aspects.

The principles and guidelines in the GFoD document are quite
clear.  It is difficult to apply technical assistance to
implement the Millennium Declaration Goals vis a vis IP.

Finally, regarding continuous evaluation, the assembly must make
provisions for ongoing monitoring, and that activity could fall
to the PCIPD.

Don't believe that there needs to be a timeline on these
proposals.  It's hard to understand how one could come to a
conclusion on these issues by the end of the next meeting, and
instead we could come to the general assembly with a report that
relies on more work for execution.

~ Argentina:  We want to refer to the statements we have just
heard and specifically on what the delegate from Colombia just
said on a methodology.

That might be useful.  The only way to reach an agreement is this
one, and it's the only way that we can find consensus.

Would like to refer to the concerns expressed by the US regarding
the principles and guidlines. It is true that we have different
philosphical concerns, but that's no reason to condemn them.  In
fact, they could be made even more broad & encompassing.  We
don't understand the actual problem with these guidelines.

~ India: We recognize that we have difficulties on several
levels.

We reviewed Para 66 IIM/1/4 and we find that it would be locate
to find anything that could possibly be objectionable.  We are
confused that the US would single para 66 as a "problem"
paragraph.

A second problem we find is that these proposals that claim this
should be taken up in other committees.  There is a perception
that the IIM is a "general committee". We thought this would be
more akin to a reform process that is taking place in the UN. 
This would be akin to "disbanding" the UN reform committee which
did not actually take place.  There is a lack of the development
dimension in the work of this organization.  There is a huge
lacuna in this respect over the 30 years of this organization's
history.

We saw the IIM process as a mini-reform process that mirrors the
UN reform process taking place in New York.

~ United States: Cites the paras where he has concerns.  As for
para 66, that was one that he cited where they *do* overlap. 
There must have been a misunderstanding.


~ Mexico: When I read paragraph 66, it raises a few thoughts. 
Generally, when WIPO provides assistance, it has been solicited
by the host country.  But when I read para 66, I think there is a
misunderstanding.  I would like to understand from the GFoD what
it means to "gurantee that the level of technology matches the
level of development."  It may interact badly with TRIPs.

[TB: The TRIPS Agreement provided transition periods for
developing countries and LDCs with respect to the implementation
of the Agreement.  Paragraph 7 of the Doha Declaration on the
TRIPS Agreement states that "least-developed country Members will
not be obliged, with respect to pharmaceutical products, to
implement or apply Sections 5 and 7 of Part II of the TRIPS
Agreement or to enforce rights provided for under these Sections
until 1 January 2016, without prejudice to the right of
least-developed country Members to seek other extensions of the
transition periods as provded for in Article 66.1 of the TRIPS
Agreement".]

~ Chair: He's satisfied that we're on to the substantive issues,
but thinks we're not moving fast enough.  What he would like is
for each delegation with a proposal or point of view to explain
their reasoning & allow us to come together. He wanted to avoid
this "game of ping pong," where delegations are constantly asking
for the floor to rebut or clarify even minor points.  Instead,
would have preferred to have each delegation with a proposal
present their views.

~ Colombia: What will the procedure be from today through
tomorrow?  Which proposals will we cover tomorrow so that we can
do homework tonight?
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