2020-01-15
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There is no indication of how the Development Agenda will be mainstreamed or reflected in the WIPO norm-setting activities and discussions in the standing committees or related discussions in open forums etc. It is requested that new language on the outcome indicator be added to qualify that the agreements to be reached should be balanced and equitable so as to promote socio-economic and cultural development of all countries. Thus, the outcome indicator in page 10 should be amended to read as “Balanced and equitable agreements reached by Member States within each area of the international normative IP framework”.
The MTSP states in the first paragraph of page 11 that the subject matter of IP is “no longer bound by territorial barriers” and that, particularly in relation to the Internet, IP subject matter requires “an international approach to be effective”. This is highly misleading. IP as a regulation, continues to be territorial. Member states decide whether or not to be part of an international instrument to extend protection beyond their own borders and their own nationals. Moreover, Member states to date, have not even discussed, leave alone agreed that any new norm setting is necessary in WIPO with respect to the Internet, particularly on IPR protection. It will be up to member states to make proposals for norm-setting on any issue, and the Secretariat’s role on Strategic Goal 1 should be limited to servicing member states’ deliberations, rather than promoting a particular agenda for norm-setting that it believes member states should adopt. Hence, the phrase “is no longer...” up to “Internet”, in paragraph 1, page 11 (lines 3-6) should be deleted, in order to correctly reflect current realities.
Paragraph 2 in page 11 refers to a “lack of progress on the normative work of the organization” and the “failure of WIPO to provide the forum to giving attention to needed adjustments and changes entails a number of risks”. It fails to recognize the approval of the Development Agenda as a fundamental normative landmark in the history of WIPO. Though its recommendations have not been translated into a new treaty, it is, nonetheless, the basis for all the work to be conducted by the organization, particularly in the normative domain. Therefore, we believe that this is misleading and the push for quick norm-setting outcomes is unjustified. Norm-setting processes during the past 5 years have indeed advanced, if not concluded, with progress achieved so far on greater convergence on issues, including on limitations and exceptions for the visually impaired and on the protection of Traditional knowledge and Folklore. This paragraph should be accordingly re-phrased to reflect accurately, the present realities.
The last paragraph in page 11 refers to the need for Committee agendas to cover the full spectrum of technological developments “from the latest advances in digital technology to traditional knowledge systems”. It is suggested that the following words be added after this phrase “… with adequate consideration of development and public policy implications.”
The section on patents in the MTSP still refers to a pressing need to keep pace with development of new technologies in the life sciences, synthetic biology, nanotechnology, etc. and the need to understand actions needed at the international level to address these developments. This oversteps the discussions that member states have agreed to in WIPO in the Standing Committee on Patents (SCP). If member states wish to bring up these proposals, they may do so, but the Secretariat should not suggest future work in this area. In the absence of any inter-governmental discussion or agreement on these far reaching issues, inclusion of these references would imply an attempt to expand the scope of patentability beyond the TRIPS agreement standards, to subject matter like life forms that are exempted from TRIPS. These references should be eliminated in order to correctly reflect the current program being discussed, as agreed to, by member states in the SCP.
The section on copyrights in the MTSP also continues to extend the mandate of what Member States have currently agreed to discuss in the SCCR. The focus on the internet and copyright enforcement in the digital environment is of concern since this is an issue that has not been discussed in any inter-governmental WIPO body so far by Member States, and on which there is no inter-governmental agreement. As mentioned in the DG’s foreword, there are a variety of experiments with legislative solutions and new business models. Therefore, in the next five years, DAG Member States would urge WIPO to collate and share such experiences and best practices in order to identify potential solutions, rather than pre-judge and advocate an approach at the outset, in the MTSP. Moreover, the right venue and inter-governmental process to discuss the future of the Internet is not WIPO, but the Internet Governance Forum (IGF), which is a broader set-up of the UN system that includes not only all UN agencies and Member States, but also civil society and industry. Indeed, references in the Director General’s foreword to internet and copyright enforcement and the statement that “the time available for developing an accepted solution is not much longer than the time span of WIPO’s Medium Term Strategic Plan” are of concern to DAG Member States, given that this sort of language in the MTSP could pave the way for WIPO to promote overly simplistic “solutions” outside the multilateral fora, be it in plurilateral negotiations or through technical assistance.
DAG members would therefore strongly urge that the references to internet and copyright enforcement in the digital environment be deleted, or at the least be placed in the context of the UN WSIS implementation and IGF discussions.
The language included in the section on brands, designs and geographical indications (GIs) in the revised MTSP still gives the impression that member states agree that there is a need to work towards harmonization of standards of protection in these areas. Member States in the TRIPS agreement fought arduously to maintain flexibility in the mode of implementing their obligations on IPRs. In the case of GIs, it is important to maintain the flexibility in the approach to meeting such obligations, in particular, choosing the system for protection of GIs in order to ensure that it is aligned with national interests and also taking into account the costs of different options of systems for the administration and enforcement of GIs. Moreover, GIs is an issue under discussion in the WTO and therefore member states have maintained a freeze in these debates in WIPO. It is therefore requested that the language “constitutes a major challenge for coherence in a world in which economic behavior is increasingly global” (penultimate paragraph, page 12) be deleted.
In the section on brands and designs, the draft MTSP in page 14 also notes that the work of the SCT committee would be “supplemented by regular thematic meetings to provide an informal forum for member states and interested parties to explore topics where the multilateral normative development could be appropriate, including unfair competition… if appropriate, lead to the initiation of more formal norm developing work in specific areas” (second last bullet point). This language appears to contravene a clear DA recommendation specifying the principles for norm-setting, and is therefore of concern. The DA recommendation on norm-setting applies to all WIPO committees, and therefore there should be no specific language in the MSTP about the role of informal forums that is specific to the SCT. Therefore, DAG Member-states request deletion of this language.
With regard to the Lisbon System on Appellations of Origin (page 19), DAG Member States request amendments as shown below, to sub-point xviii:
(xviii) An IT strategy needs to be deployed in the medium term to ensure that current investments are leveraged in the creation of a fully electronic registration and notification procedure, to be used by interested Lisbon Member States.
With regard to the ‘Strategies’ section under the Madrid System (page 21), the following alternate language is proposed in place of the current text in sub-point (xi), as shown below:
(xi) Encouraging Contracting Parties to examine the benefits of simplifying the System by moving to an environment based solely on the Madrid Protocol. Supporting the three Member States which are members of the Madrid Agreement, but not the Protocol, in acceding to the Protocol.
(xi) to enhance awareness among the Member States which are members of the Madrid Agreement, but not of the Protocol, about the eventual advantages of adhesion to the latter.
