Negotiations on the WIPO Development Agenda came to a grinding halt today, after the Chair presented the Committee with a proposed recommendation for the WIPO General Assembly that raised concerns about procedural fairness and transparency. Brazil and Argentina announced that they had instructions from their governments to withdraw from the process due to unfair procedural treatment, and requested that the existing proposals be sent to the WIPO General Assembly to decide the future of the Development Agenda. The only thing that was clear by day's end is that the annual General Assembly meeting on September 25-October 3 will be very interesting indeed.

Read on for more analysis and the NGO Coalition's notes after the jump.

The Chair's proposal to the Provisional Committee on Proposals to Establish a WIPO Development Agenda (PCDA) included a recommendation that "future discussions would consider and build upon the proposals which received emerging consensus support during the PCDA process" and a list of 40 proposals, drawn from the list of 111 proposals that WIPO Member States have been discussing this week.

Brazil, Argentina and the other 13 countries in the Group of Friends of Development had rejected the Chair's suggestion that this week's meeting should proceed by grouping proposals into three baskets -- those with consensus, emerging consensus, and no consensus -- at a meeting last Friday, and again on Monday. Brazil, Argentina, Iran, South Africa, and Cuba stated today that they were not able to accept the Chair's new proposal because it was based on an approach they had expressly rejected.

The list of 40 selected proposals in the Chair's proposal also raised concerns about balance. The Friends of Development noted that it did not contain any of their key proposals. At the same time, there was a clear correlation between the proposals selected and those for which the U.S. and E.U. had expressed support. 35 of the 40 proposals are supported by the U.S. and 28 by the E.U. as shown in the NGO coalition's chart, here. Only 2 of the 40 were not supported by both the U.S. and E.U. (proposals C7 and C15 - both in the rejected proposals list of the U.S. and E.U. in the elimination strategy that we have been watching all week). The Chair gave no explanation of the basis for selection, other than noting that a request for further clarification on a proposal was not a bar to its inclusion.

The Chair's proposal polarized the member states and may have irreversibly damaged what little progress toward a consensus outcome has been made this week. Brazil, Argentina, Iran, South Africa, Cuba, Bolivia, Ecuador, Venezuela and India stated that they could not accept the proposal. It was supported by Group B, (and its members E.U., U.S. and Switzerland), the Central Europe and Baltic States Group, the Arab Group and Kyrygzstan, and the Caucasus States Group, and qualified support from the African Group, Colombia, and Mexico. Chile suggested that the proposal could be withdrawn and discussions could continue on an alternative basis, but the Chair did not welcome that idea.

The Asia Group, India, Chile, Paraguay and many other countries expressed support for continuing the discussions. There was genuine sadness, disappointment and frustration that things had stalemated yet again after two years of work. The delegate from Ecuador summed up the view of many in the room and brought the focus back to the very real problems that the Development Agenda proponents want to address:

"The terrible situations affecting many states and peoples around the world should be a key element that mobilizes the discussions in this forum so that we could have more concrete solutions to overcome barriers. That's why Ecuador has been striving to bring forward proposals as a package. That is why it's often difficult when we see the fragmentation some are trying to achieve, and that tries to restrict the scope of what we're trying to do.

I am fairly frustrated with the results of these sessions and it is unfortunate we could not see a little more flexibility or humanity in these discussions and make IP a constructive tool. We have lost an opportunity here. I hope in the General Assembly, when we have to go over our work here, we can see more effective and positive results."

At the very end of the day, the Nigerian Ambassador, Mr. Usman Sarki, brought diplomacy back to the fore and suggested a way forward. He proposed a process for evaluating proposals as part of a work program with criteria for short-term, medium term and longer term goals. The meeting adjourned to allow regional groups to discuss that in private "informal" sessions, which are likely to continue through tomorrow. If all countries accept that, there's a chance of finding a fair way forward and the last two years' of work may yet lead to some sorely-needed changes that benefit all the world's citizens. If not, September's General Assembly will be interesting indeed.

The NGO Coalition's notes of days 4 and 3 follow, in reverse chronological order.

There's also further excellent analysis at the following blogs:
Pedro de Parangua Moniz of Brazil's FGV law school , a2k Brazil, Georg Greve of Free Software Foundation Europe and IP Watch.

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Provisional Committee on Proposals for a WIPO Development Agenda, Second Session

Day 4, June 29, 2006

Notes taken by:

Teresa Hackett, teresa dot hackett at eifl dot net, Electronic
Information for Libraries [TH]

Gwen Hinze, gwen at eff dot org, Electronic Frontier Foundation [GH]

Thiru Balasubramaniam, thiru at cptech dot org, Consumer Project on Technology [TB]

[NOTE: This is not an official transcript. It's our best effort at
providing a faithful set of notes of the proceedings. Any errors and
omissions are unintentional and regretted.]

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Meeting started 11:15 am [Plenary session adjourned to 10 am]

Chair:

I have done a lot of work today. I have drafted a document. This was a very difficult task. I had to reflect all the views expressed on PCDA/1/6. I also had to incorporate the Group of Friends of Development document PCDA/2/2. I have tried to take into account the work of the GFOD. I think my document is currently being distributed.

I will hold meetings with regional coordinators in Room B, in a little while. I'd like to see if we can have meetings and see if the document can be a basis for continuing our work. I tried to take account of what you said to me yesterday, but I tried to do so in a broad manner, to show indulgence.

A request for further clarification [of a proposal] was not considered a barrier or obstacle to including a proposal in the document, so I would like to ask you if the proposals I have included here are acceptable to you. I would like to ask the WIPO Secretariat to have it translated into French and Spanish as soon as possible.

There are a couple of points about continuity of the work in a body or process to be established at a future date. I have also suggested that all proposals submitted thus far be the subject of future work, even if they were not part of the initial package submitted to this meeting. I don't want to open this up to debate. I want to adjourn the meeting now, but I see Brazil wants the floor.

Brazil:

A point of order. We don't agree with this way of working. It was not what we agreed in formal sessions. We agreed that we would work with all proposals and would not have a list with emerging consensus. It is not acceptable. We don't agree with this way of working.

Argentina: In point one, we talked about a way of proceeding. This reverses everything we agreed in formal sessions on a way to work so we reject it. We rejected on Monday working on an approach with baskets, or an emerging consensus list. As Brazil said, we are not prepared to work on this basis of this document. It breaks all agreements we made on process on the first day.

Iran:
On Monday we talked about how to work, to proceed. We have worked on this basis for several days. and now we have this document, prepared non-transparently, based on a work proposal we rejected a week ago, so we do not agree. We cannot work on this basis. We disagree with informal sessions as way to proceed.

[GH ed note: The Chair met with regional coordinators last Friday and put the grouping into three basket approach - consensus, emerging consensus, no consensus - forward. It was apparently rejected by the GFoD, and possibly other delegations.]

Switzerland:

Thank you for preparing this document. We gave you a mandate to prepare this yesterday. We should meet now and see if we can agree after reading this document.

South Africa:

Thank you for your hard work, but we cannot agree to work on the basis of this document because it reflects the basket approach that we did not agree on.

Cuba:

We agree with Brazil and Argentina. We cannot work on this basis. The document is based on an approach we rejected.

Austria:

We should give up on this document and move beyond discussion of baskets. Now we have clusters and now we should meet in regional groups and have discussions and see how we can move forward, after regional group discussion.

[TB: Argentina, Brazil, South Africa, Iran and Cuba reject Chair's document. Upon first glance, it does not appear to contain any of the substantive proposals of the Friends of the Development.]

Kyrgyzstan:

We haven't discussed this yet in regional group, but we think that the last few days have been very useful and that this document will allow us to go forward.

Mexico:

Would like to continue in informal sessions.

Bolivia:

We recognize the efforts you have made but we don't think it's the procedure we have agreed upon. In point B, at least 10 items seem to have been deleted. Cannot proceed on this basis.

Chair:

Thank you for your input. I understand the disappointment of the GFOD who tried to work on a comprehensive document but I don't recall that we agreed on a procedure that we could all be content with.

I could hardly not work on a document I had made up, on which many delegations spoke - namely PCDA/1/6. I would have liked to have incorporated elements of PCDA/2/2 but it wasn't possible to do that due to time; I only had yesterday afternoon and this morning and it wasn't possible. I will now adjourn the meeting and we'll have regional group meetings. I recognize Brazil.

Brazil:

We don't agree on this way of proceeding. We did not agree with working in informal sessions. We don't accept this document as the basis for working.

Chair:

I understand that you don't agree with this document, but hope that you will agree to hold discussions as to why you don't agree.

Nigeria (African Group):

We would like to hold a conclave for members of the African Group to deliberate on this document.

Thailand (Asian Group):

Thank you for your work, want to convene Asia Group meeting to hold discussions on paper.

Croatia:

Would like to convene meeting of Central European and Baltic States to consider document after meeting adjourns.

Switzerland; Group B to room B.

Austria: Don't want to prevent EC members from attending Group B mtg, so EC will meet after Gp B.

Chair:

Going to give enough time for regional groups to meet and I'll meet with regional coordinators.

Meeting stands adjourned 11:33 am

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12:58

Chair:

I wanted to adopt a broad approach, basket approach, process that would be agreeable to all.

I wanted to let you know that there was only one document PCDA/1/6 that could be the basis for our work. I was quite clear about this - that we could not use PCDA2/2. In the short time available, there was not time to include PCDA2/2.

PCDA2/2 was quite a different approach - more comprehensive b/c it includes other proposals. Not saying it would be impossible to include, but not possible in short time available for preparation of Chair's documents.

Important to remember that we had to have a proposal to go forward.

We could see this document as headway, or we have to decide if we want to let the General Assembly do it all.

Croatia (on behalf of the Central European and Baltic States):

I would like to express strong support on behalf of our regional group for the proposals you distributed. Most viable and sensible basis for how to proceed. This paper does not exclude any of the 111 proposals from our discussions, it postpones them for later. It is not clear why GFOD abandoned the proposals made by the Chair. At least we should try to agree on some of the proposals.

Thank delegations for their hard work and flexibility. We have come a long way in two years and are ready to harvest some of the proposals. It would be frustrating if we cannot have some agreement.

Brazil:

I would like to clarify. We did not accept or adopt the 111 proposals as the basis for discussion. PCDA2/2 was the basis for our discussions as far as we were concerned. The discussion was taken to exclude the views of a group of members, so there is no point in continuing the discussion. In particular it excludes the proposals of the GFOD.

The only group to make an effort to move forward the 111 proposals was the GFOD. We made serious effort as a group to cut down the large number of proposals, trying to avoid duplications as in PCDA/2/2 in an effort to reach consensus. The other groups continued with the process of identifying proposals under different categories where no consensus was reached in this room.

I have instructions not to continue this process. I propose to end this meeting and to submit a report to the GA, which indicates there is no consensus from this meeting so that it is very clear to the GA.

We want to make clear to GA that our proposals are those set out in the four documents we have submitted: WO/GA/31/11, IIM/1/4, PCDA/1/5 and PCDA/2/2 and that they remain on the floor as our proposals, and that there is no agreement from this committee.

Kyrgyzstan:

On behalf of our regional group, thank you for the wonderful work you continue to do on behalf of this committee. You are leaving no stone unturned in ensuring we continue to work in a constructive manner.

As to your paper circulated today, we support the spirit and principles of the paper i.e. to continue the work in future in these very important areas. It is vital to take into account as much as we can all of the proposals presented by our delegations and we thank delegations for vital contributions to our work over the last days.

Allow me to say that to continue with our work we now need more of a concrete basis on which to continue this process, so that the process is not interrupted. Once again, we pay tribute to you and assure you of our support.

Austria (on behalf of EC):

Let me express in a personal basis, surprise that Brazil considers after 4 days of discussion that the 111 proposals are not the basis for discussion. Maybe I misunderstood this, and I freely admit it, or that God has not gifted me with sufficient fantasy to follow here.

We wholeheartedly support your text, a proposal for concrete recommendations, which are completely in line with the mandate of the PCDA.

Switzerland (Group B):

We have carefully analyzed your paper and we admit that some proposals by Group B are not included. Nevertheless we are in the position of accepting your paper. We are disappointed at the attitude of some of the delegations. We have now had four meetings costing a total of more than 1 million Swiss francs. It would be very disappointing not to at least reach agreement, and once again, we are disappointed at the destructive attitude of some delegations.

Argentina:

Support Brazil's statement.

I have express instructions not to support the current program and conditions of work. The current program excludes the GFOD proposals. It should not be just the agenda of developed countries.

We want to reiterate that the GFOD has made effort to submit a document that tried to accommodate proposals of all groups. Our group has put forward over 100 pages in four documents, with analysis, and that's the basis for our Group on discussions. At no point was there an agreement by the GFOD that the Annex [to PCDA/1/6] was the basis for negotiations. We would like to remind you that the four documents we have submitted are what we feel are the basis for negotiations. This is clearly expressed in the cover note to our document submitted to this meeting, PCDA2/2.

Bahrain:

Firstly on behalf of the groups who supported the position of Bahrain, thank you for your efforts. We think we have reached the time where it is urgent and necessary to consider this document in detail so that it can serve as the basis for our discussions to enable us to achieve results at the GA.

We hope that our work and that our efforts and achievements can be taken into account. For the past two years, we have been working hard and making progress and held a lot of discussions.

Like the Asian Group, we can go along with any consensus decision. It is too early to adjourn this meeting. There is still 1.5 days left to try to deliver on the mandate of the GA.

South Africa:

It is very difficult for my delegation to accept your proposals as it is. As a multilateral negotiation, I was hoping that we would get some kind of outcome that would accommodate all of us.

Very very difficult for my delegation. Don't think this reflects a balance of interest of all of us.

Nigeria: (on behalf of African Group)

I follow those who have expressed commendation of your leadership and I express our readiness to give you support to lead this meeting to a desired outcome.

As a body, the African Group submitted an elaborate set of proposals to the IIM on the establishment of a DA.

What was submitted to the IIM and PCDA was the outcome of the mandate of the governments of the African states. The mandate is to continue the discussion until the process is established.

Speaking on behalf of the AG, our mandate is to see the continuation of this process until a desired outcome is reached.

Therefore, we call on Chair to continue with meeting and hope that concerns of AG are accommodated in a proposal for WIPO DA to GA.

Our proposals were clear, concise and actionable. We do not intend to withdraw our proposals or to see the process terminated halfway without a definitive result.

Re Chair's paper, while it will need editorial work, the African Group is of view that it can form the basis of work in principal without endorsing it as it stands at present.

Colombia:

Like previous speakers, I thank you for your efforts on the Development Agenda.

We believe that paper you've submitted today is very close to good way to move forward. Think that we are close because we think that various proposals including those from GFOD should be included. Various proposals that we support should be included. Could be basis for negotiations for including other proposals not currently included, so that we could work towards a satisfactory result within WIPO to meet needs of DCs.

We still need to make further efforts to move forward in this process. I refer to the delegation of South Africa, when he said we need to search and strike a balance.

Striking a balance is what we would be seeking to achieve in a negotiating process. Want to see if we can continue negotiations.

We agree with Thailand, it is premature to stop a process, which we still have a possibility of reaching a consensus in, at least some consensus on some topics, after nearly two years of work.

We should try tomorrow to send out a message of encouragement to GA and to all users and all people working with IP at international and national levels, to show our support for WIPO continuing to work on improving the way it deals with development issues.

Iran:

After 2 years we showed flexibility with proposals of all Member States to discuss cooperatively. But from our flexibility it should not be assumed that our proposals and components of the Development Agenda should be ignored.

It is disappointing that all of our components or proposals have been ignored

After two years of discussion, we are not in a position to come along with this paper.

U.S.A.

Would like to express full support for Group B statement. Thank you for Chair's text. Good compromise basis for going forward.

We want to note that we have included PCDA/1/6 as basis of all of our discussions this week as agreed at last meeting, point 7 of Chair's summary from PCD 1, page 109 of that report.

Also want to note that your proposal is able to accommodate many of proposals within WIPO's current budget.

Ethiopia:

As LDC we would like to benefit from the outcome of this session. Development for us is food, a medicine.

We need a concrete outcome from this session. Want to stand as an equal with other nations.

I believe the world has the capability and the resources to put its part to the developing nations.

Benin:

I would like to take floor on behalf of LDCS to thank Chair in efforts to lead us towards end of this debate. We are ready to support any initiative that enables us to make progress along this path.

We support the statement of Nigeria, so as to come up with a Devlt Plan for WIPO.

We support the chairman's document as good basis for discussion, to be able to achieve results that honor all the people in this room.

China:

Thank you for your efforts. We fully support Thailand's intervention obo Asia Group. We hope all parties will show maximum flexibility to continue our discussions.

India:

My delegation has noted your efforts.

Also note that there has been agreement not to discontinue discussions at any juncture. However we feel that the proposal you have put forward does not adequately reflect the list of proposals identified as enjoying emerging consensus. It seems lop-sided. There is inadequate parity for what is put to short term and what is put to the future.

As to the important issue of going forward with these discussions, we would have liked to have seen a clearer road-map. There is no listing of issues for consideration in the medium term.

My delegation is not in a position to accept this proposal as it currently stands. We look forward to contributing to any further efforts that you may wish to undertake.

Chile:

We believe that the document could reflect in a more balanced way all the proposals; we believe that only one side of the balance is reflected here.

We believe that we have been flexible here. We also believe other parties have to show more flexibility in what they can give ground on. We have come very close to one group here. We do not share fully all the proposals but we do share the objective. We would like to have the most inclusive result possible. As the Asia Group says, there is still 1.5 days.

Maybe the best thing is to take this document off the table, do what you like with it, take what you like from it, and explore new ways of looking at the problem,

Do believe in DA and that we can find ways forward.

Chair:

I do not wish to draw any conclusion now. I wish to continue in a formal session at 16.00 and see if any new elements emerge and if there is room to be able to consider process in hours and minutes left.

Adjourned 1:37 pm
----

[GH ed note: Lots of delegations talking to lots of delegations in this recess.]

----
4:24 pm Restarted

Chair:

Would like to thank delegations who stayed quite late in this morning's session. There were delegations that rejected my document and preferred to refer all proposals to GA; others who wanted to continue discussions; others who supported my paper as good basis for discussions. Also one delegation who said my document should be set aside and another basis sought. That's my recollection and summary of this morning's events, but my memory may be wrong. So I now need to consult you and hear what you would like to do.

I assume, as the Chair is trying to do, that you are all still engaging in consultations in good faith and trying to move forward. If we are to continue discussions it is important that we show flexibility since it is clear we are not going to reach consensus.

Would ask that delegations speak courteously as much as possible to express their views. So the floor is now open.

[GH: Absolute silence for several minutes.]

Chair:

What I need is for delegations to express their positions, even if you have to repeat what you've said, but without going into details.

Chile:

I think in your summary of this morning's meeting, it was Chile which suggested that you could withdraw your document. We did this in as constructive a spirit as possible. We want this process to continue. We don't have anything to propose as an alternative. If nobody has a proposal to make, I suggest that we come back tomorrow morning.

Chair:

I don't see anyone else asking for the floor, so perhaps I can ask Chile a question. Do you think we have enough time for anything else, any further discussions? We are supposed to be concluding our work tomorrow.

Chile:

My delegation believes whatever solution is reached in this meeting should be as inclusive as possible.

We are not rejecting anything; not excluding anything. We are saying this because we want this process to continue. As to forum, we are flexible. We wouldn't mind renewing the mandate of the PCDA.

The worst thing would be to end the PCDA. We think that this process should continue.

We should have an agreement - however little ambitious that would be. But I hope it is not the document we came up with this morning. I hope the process continues, I won't go into the substantive issues now.

We also expressed a preference for the approach of the GFOD from the day that it was submitted. Others also expressed their preferences.

That's all. [Sigh.]

Paraguay:

We welcome the Chilean proposal, because we would not be abandoning any of the proposals submitted to this committee. We think process should continue. Think we could read a kind of roadmap and that the process should continue in some kind of forum like this.

Switzerland:

I can only repeat what I said this morning on behalf of Group B. Your paper was an excellent working basis. There was broad support for your paper.

As for interventions of Chile and Paraguay, we think that the process and content go together. We should first of all concentrate on the content in your proposal.

Argentina:

You have asked us to reiterate our positions.

As I said this morning, I have instructions. They are as they were this morning; we continue to think that your document cannot be a basis for our work.

What Switzerland has just said about process and content, we have already discussed this in our formal submissions.

Of course content and process must go together. Perhaps we believe like Chile that the proposals should be reiterated. Perhaps it is a problem of misunderstanding. At the moment we have a compromise text from the chairman. It is quite clear that the conditions to reach consensus are not in place.

We would prefer to take this to the GA to submit a factual report to them. Then we will be able to discuss the issues and let GA decide how to move forward this process.

Austria (on behalf of the EC):

As we said before we wholeheartedly support your text so we can safely give our support to the Group B statement.

We are eager to cooperate with you and reach agreement on this process.

Croatia:

I reiterate what has been said by our group in the morning session. We still think your proposal is the best proposal and represents a good basis on which to proceed with our work.

Would also like to point out that the document was made on the basis on which all delegations agreed. It follows the logic of clusters that were followed at the last PCDA. We have twisted our brains this week and have tried to find an outcome.

At this late stage, we think it will be too difficult to try to find another type of solution, so best way to proceed is to use the document you have proposed.

Colombia:

As you requested us to state our positions, we stress the importance of finding a solution.

We are looking for a lowest common denominator so that we can make most of last two years' work and so many countless proposals. Maybe we can sacrifice some of the proposals. In that sense your paper has component on recommendations - six first paragraphs are fine. Could think about looking at Annex as basis of negotiations and trying to reach agreement.

We could make an extra effort today and tomorrow. We could try to be imaginative, talk about 30 proposals, say five per cluster, and putting priority on proposals, a package which is a balanced in reflection of the character of the proposals. A balanced package. We stress that we should constructively work to get concrete results for GA.

Brazil:

I repeat what my delegation's position was this morning, similar to that expressed by Argentina.

Mexico:

We consider that the document you submitted this morning does have characteristics to support our work.

If we just close the meeting now, it makes the whole of our work useless. Think that the discussions for our work should continue in informal sessions.

Ecuador:

I would like to reiterate our position from this morning, our commitment to the views expressed around the GFOD proposals.

The proposals made by the GFOD reflect the desire that progress in IP in relation to which we're very committed, cannot constitute an obstacle or barrier in other areas where DCs have concerns.

The terrible situations affecting many states and peoples around the world should be a key element that mobilizes the discussions in this forum so that we could have more concrete solutions to overcome barriers. That's why Ecuador has been striving to bring forward proposals as a package. That is why it's often difficult when we see the fragmentation some are trying to achieve, and that tries to restrict the scope of what we're trying to do.

I am fairly frustrated with the results of these sessions and it is unfortunate we could not see a little more flexibility or humanity in these discussions and make IP a constructive tool. We have lost an opportunity here. I hope in the General Assembly, when we have to go over our work here, we can see more effective and positive results.

Venezuela:

Not reiterating position, because first time asking for floor. Want to return to statements made by Argentina, supported by Brazil and Ecuador.

Bahrain:

I would like to reiterate the views we expressed in our statement this morning.

We also note the issue of transparency, to which we attach a great deal of importance. Believe that way in which we are working will not allow us to achieve results. I believe that we should think of the interests we are trying to pursue so that we can make a recommendation to the GA.

If we can't go any further, then we will all be the losers, and the flexibility everyone talked about should give rise to a consensus. If not, we should let it all go forward to GA. And your paper gives a good basis for that.

Cuba:

We reiterate the position we presented this morning.

Thailand:

I wish to reiterate the position of the Asian Group this morning.

We wish to be constructive in our approach and show flexibility and will support any consensus that emerges from this meeting. We remember yesterday that we were working towards emerging consensus, but am sensing that we have not quite achieved that consensus at the moment. We will not object to what the committee has agreed upon.

Iran:

From the beginning of the week, we used utmost flexibility. We also expressed our viewpoint in PCDA/2/2.

We expected the process to be transparent, inclusive and clear.
Our viewpoints have been excluded. The current text is not reflective of concerns of all member states. We support a text which covers the concerns of all with consensus.

Russian Federation:

We fully support the points made this morning by representative of Kyrgyzstan as coordinator of our regional group.

We would like to thank you for the efforts you have been making.

We feel that document you have prepared could be basis for further discussion. Also believe it necessary to continue with our discussions and efforts we've been making to seek mutually acceptable solution.

Nigeria (African Group):

I should first of all, on behalf of the AG, reiterate our support for your chairmanship

Speaking as the Nigerian delegation, my humble opinion is that what we now need is careful reflection upon where we want to go from here, what we want to achieve from this process that has taken two years.

From the comments and interventions of all, or at least most, delegations that I have heard, the consensus is for continuation, not termination of this process. We would like to add our voice to those voices.

Having said so, I would like to propose the adoption of a set of principles and guidelines that will give comfort to all delegations that the DA will not be prematurely buried.

For instance,

1. This meeting could give a strong signal that this Development Agenda process could be renewed.

2. We could establish principles or criteria for identifying proposals as short, medium and long term

3. We could agree to work out a formula for the implementation of these proposals in the short, medium and long-term basis.

4. Most importantly we could agree that no proposal will be discarded, vetoed, or consigned to a locker.

That will now clear the air. With your permission, the African Group would like to come up with a briefing paper, to see if that might be able to bring the process forward.

With that note, if the chair will not mind, I will call for 30 minutes adjournment for us to discuss amongst ourselves to see if we will come back with something. A short break for consultation, with the permission of the Chair.

U.S.A.

We'd like to restate our position from this morning. We support your text as basis for going forward.

While not perfect, it contains proposals from the African Group, Arab group, Brazil, Colombia, Argentina. We note it does not contain all the US proposals. Your document does in fact reflect consensus that had support from the greatest number of delegates.

Chair:

Would like to ask for a consultation with regional coordinators before we take a formal decision, in this formal mode, then we can take a decision, taking into account the proposal from the African Group made by its coordinator, Nigeria.

Adjourned at around 5:10 pm.

[GH: Plenary session did not resume. The WIPO Secretariat announced sometime after 6pm that the plenary session would not resume today, and that informal (i.e. non-plenary, non-public) sessions would continue at 10 am on June 30, 2006.]

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Provisional Committee on Proposals to Establish a WIPO Development Agenda, Second Session

Day 3, June 28, 2006

Notes taken by:

Teresa Hackett, teresa dot hackett at eifl dot net, Electronic
Information for Libraries [TH]

Gwen Hinze, gwen at eff dot org, Electronic Frontier Foundation [GH]

[NOTE: This is not an official transcript. It's our best effort at
providing a faithful set of notes of the proceedings. Any errors and
omissions are unintentional and regretted.]

-=-=-=-=-
Copyright-Only Dedication (based on United States law)
Except where indicated in relation to specific text in the following
material, the person or persons who have associated their work with
this document (the "Dedicator") hereby dedicates the entire copyright in the work of authorship identified below (the "Work") to the public domain.

Dedicator makes this dedication for the benefit of the public at large
and to the detriment of Dedicator's heirs and successors. Dedicator
intends this dedication to be an overt act of relinquishment in
perpetuity of all present and future rights under copyright law, whether
vested or contingent, in the Work. Dedicator understands that such
relinquishment of all rights includes the relinquishment of all rights
to enforce (by lawsuit or otherwise) those copyrights in the Work.
Dedicator recognizes that, once placed in the public domain, the Work
may be freely reproduced, distributed, transmitted, used, modified,
built upon, or otherwise exploited by anyone for any non-commercial purpose, in any way.
-=-=-=-=-

12:03 pm Start.

[GH: We were due to start at 10:30 am]

Chair:
Have been making consultations with regional coordinators. Making headway - there is an emerging consensus, but not quite consensus, on way forward. But it is a way forward. Going to start by giving floor to delegates who have not yet had opportunity to speak. Then give opportunity to NGOs.

Want to repeat one or two things:
- provide interpreters with written statement;
- each NGO gets 3 minutes

Plenary session this afternoon starts at 4 pm, after discussions with coordinators. If have not concluded NGOs this morning, will continue this afternoon.

Austria: (on behalf of the European Union):

Cluster D:

6,8,14,15, and 1 (with reservation) - consensus in short term

2, 10-13, 16 need further clarification

Cluster E:

2-5, 7,8 ready for discussion and consensus

further clarification: 1,6,9, 10

Cluster F:

2 - likely agreement
1, 3,4 further clarification before discussion

South Africa:

Cluster A:

A3 - concerned that reluctance of other delegations to support because of unclarity. So want to provide info. Within AG have discussed, would limit intervention to tech infrastructure and leave out "scientific".

Support D 11 and 16.

USA: We note that cluster F contains a mix of process and issues. We support proposal 3 in cluster F.

Benin: Re trust fund proposal: The proposal to establish a trust fund is based on action taken by WIPO LDC division. We pay tribute to the Republic of Korea and Sweden for providing support. A trust fund for LDCs would be managed by WIPO and financed by countries or organisations willing to make a contribution. Benin hopes that this provides the clarification requested by other countries.

South Africa: I left out something on cluster A3. WIPO could assist developing countries to explore utility models. My statement in 1/6 Prov 2 goes into more detail on this.

Brazil: On behalf of the GFOD, I will make a comment that applies to all the clusters. We are concentrating on making references to our own proposals, but there are certain points on which we made no comments.

We do not want people to take our silence as consent. I think some other delegations may have a similar position. The way that some proposals are drafted affects our view of them. The way they are drafted requires us to turn them inside out and analyze before we can take a view on them. PCDA/2/2 expresses our views on how to frame. We've tried to be clear; we think other proposals should be.

Nigeria: It is fair for the African Group to say that we too have been deliberately silent. We have our own positions but we thought by refraining from making reservations we might advance the process and contribute to the achievement of a consensus.

What we see being done is the process of elimination by approving a very minimum body of proposals for further discussions, and a very large body of proposals that are being put back to us for clarification.

What we don't know is, at what point in time should be provided this clarification and conduct negotiations so these proposals are not left behind.

When, how and at what point or where, will there be finalization of these proposals?

It will not do for us to list 3 out of 20 proposals and consign them to some other discussions.

It will not advance us in what we are doing here.

A number of groups have availed us of their views on particular proposals. The African Group proposals were not derived from thin air. Taken from our practical experience of our countries - based on our research of what is happening in our own countries.

We appeal to delegations to study carefully the report of the UK Commission on IP which made very pragmatic and useful proposals, There is also a report of the Board of Trade in Sweden, a study that addressed flexibilities, and transfer of technology. And there is an OECD report on impact assessments and technology transfer.

Our proposals are based on substantial reports and based on recommendations from experts in the field.

It is not useful to be engaged in this process [of consignment]. I hope this appeal will not fall on deaf ears.

Chile: I would like to clear up some doubts about Chile's proposal. We are happy with the GFOD proposal. I would like to refer particularly to the public domain. B7, B8 and D9. We got the impressions that two got substantial support (those dealing with the analysis of an open, accessible PD and norm-setting).

The third proposal seems to have less support maybe because what I said wasn't clearly understood - models of access to content in the PD, the objective of which was to do something specific on promotion.

I recall that you were the first person to react to this, that inventions fell into the public domain in Paraguay. We are trying to specify tools here. Libraries and other international organisations are doing a great deal to protect the public domain, but we feel that governments are not doing that much.

Virtually all countries have copyright registries and WIPO recently produced a study on this. We don't see why copyright offices cannot make this information available. The benefits would be enormous to universities, research institutes. It is trying to involve governments more in protection of the PD, not by appropriating something for themselves in the PD.

The GFOD proposal on PD is in the proposal on norm setting. We are not trying to take rights away from rightholders; it is a matter of transparency. We need to look at specific issues and if necessary, studies would have to be carried out on this.

Bahrain: This issue has already taken much of our time. I approve of what Nigeria said. We have to be more flexible and cooperate more amongst ourselves. It is clear that our requirements are very different from the development point of view.

Cuba: A co-signatory of the FOD proposal, I support the delegation of Brazil that not making comments [should not be seen as] indicates approval.

Chair: We will finish our meeting now. NGOs can put their names on the list for interventions.

Would ask that delegates of Thailand, Colombia, Chile to stay behind and chat with me. The meeting will start this afternoon at 16.00.

Queen Mary IP Institute: announcement about lunch meeting.

Switzerland: No Group B coordination meeting at 15.00.

Argentina: Meeting of GFOD and accompanying delegations at 14.00 on 13th floor.

Nigeria: Meeting of African Group and interested delegations in Room 127 at 3:30.

Chair: I would like to adjourn the meeting

Adjourned 12:40 pm
----

4pm Restart

Chair: successful meeting with regional coordinators. I was asked to prepare a document based on their written proposals. I propose that I do so by tomorrow.

I propose we listen to NGOs and other observers at this meeting. I would ask that the meeting will continue under the vice-chairmanship of our colleague from Kyrgyzstan. Tomorrow we will begin the meeting at 10.00 and I hope that I will have a proposal to make.

Vice-chair: Thank you dear friends and colleagues. It is my special honour to sit here. I ask all of you to stick to our timetable. We will listen carefully to our NGO sector. We have specific timeframes for each intervention. I give the floor first to the distinguished representative of CPTech.

CPTech:

Civil Society Coalition:

Consumers International:

Latin-American Assoc of Pharma Industries:
We welcome the initiative of Argentina and Brazil in a DA for WIPO. We share all of the views in PCDA/2/2. We support 3,5,7,9,14,16,17

International Video Federation:
We closely follow DA discussions at WIPO and work closely with the creative community. We speak today to remind participants that the livelihood of creators depends on copyright. Copyright protection is essential for economic and societal development. We emphasize
-no reason to believe there is a contradiction between copyright and development

[Interpreter: can the speaker please slow down for interpretation]

Must not result in the weakening of copyright protection

Inter Fed of RROs: Our comment relates to cluster A, technical assistance and capacity building.

[Missed a bit]

Adoption of the needs to the recipient. IFRRO and ARIPA signed a cooperation agreement which will inter alia make cooperation projects on legislation, enforcement, awareness building.

IFRRO believe that TA involving private and public sectors is a prerequisite.

Inter Fed of Film Producer Associations:
We welcome that discussions over the last days have begun to reach consensus. As the EC said yesterday

Ramsie, Egyptian film maker who was at WIPO last time, last film employed 300 people in direct jobs, and is an industry that can play an important role in the economy. It is important that we have a flexible regime for copyright.

Cluster A 5,7,8,9, 10,11 are very practical proposals which are distant from the theoretical views we have heard in this body.

EFF:
Mr. Vice- Chair, congratulations on your election and thank you for the opportunity to present our organization?s views to this meeting.

The Electronic Frontier Foundation is an international civil society non-profit organization, with over 11,000 members worldwide, dedicated to protecting civil liberties, freedom of expression and the public interest in the digital environment.
The Electronic Frontier Foundation has produced a briefing paper for WIPO member states on recommendations for WIPO?s technical assistance program, which is available outside. Today, EFF wishes to address four sets of proposals in document PCDA/1/6.

First, in relation to cluster A, EFF supports the adoption of guidelines for WIPO?s technical assistance to ensure that it is development-oriented, individualized, balanced and integrated, including proposals 13, 18, 20 and 31. WIPO?s legislative advice plays a key role in the development of national and global intellectual property norms. Since overbroad legal protection for rightsholders? technological measures can override national copyright exceptions and block access to knowledge required for education and innovation, it is vital that WIPO?s draft copyright law provisions on technological protection measures (i) leave room for existing national copyright exceptions and limitations, (ii) ensure circumvention sanctions are linked to copyright infringement, and (iii) provide access to circumvention tools for lawful purposes.

Second, EFF supports proposals B 7, 8, 17, 18 and 21 and proposal D 9 on the adoption of principles and treaty provisions to ensure that WIPO?s norm-setting activities protect a robust and lively public domain; and protect international flexibilities, national exceptions and limitations, and the ability to regulate anti-competitive practices.

Copyright law was designed to facilitate creation of information goods but is increasingly acting as a barrier to knowledge growth and innovation. The main obstacle to utilizing public domain resources is identifying them. Accordingly, we support the Chilean delegation?s proposal for an international database of public domain works, similar to a measure in recent proposed US legislation and currently being created for Canadian works by Access Copyright and Creative Commons. This would provide much-needed certainty for trans-border collaborative Internet projects such as Project Gutenberg?s collection of 10,000 public domain books, the Google Library and Open Content Alliance projects, and users around the world.

Third, EFF supports the creation of a mechanism to carry-out continuous independent, evidence-based Development Impact Assessments of WIPO?s norm-setting and technical assistance activities including proposals D 1, 11,12,14, 15 and 16. To assist Member States who are being asked to adopt Technological Protection Measure laws in the new Broadcasting Treaty in the SCCR, WIPO should conduct an assessment of the likely costs and impacts of implementing such obligations.

Fourth, we support discussion of mechanisms to facilitate access to knowledge as outlined in proposal B 24, and consideration of alternative copyright-based and collaborative models of innovation and knowledge production, such as free and open source software and Creative Commons licences in proposals B 22, and 27. In this regard it would be useful to study the success of projects such as the Creative Commons-licensed Wikipedia online encyclopedia in generating and facilitating access to global knowledge goods.

Finally, EFF supports creation of an appropriate process within WIPO to continue work on all the identified proposals to enhance WIPO?s institutional capacity to meet the needs of all its Member States.

Thank you for your consideration.
---

IP Justice:

MSF:

Free Software Foundation Europe:

Posted at:

Mr. Chairman,

the Free Software Foundation Europe (FSFE) has various comments to make in relation to the document PCDA/1/6 Prov. 2 and the discussions that followed.

Regarding item B22, the FSFE is surprised to see Free Software and Creative Commons described as activities outside the mandate and scope of copyright. Additionally, we understood the distinguished delegate of Mexico to have a similar understanding. As also explained in our ''Free Software Essentials Reference'' paper available on the table outside, the vast majority of Free Software is using copyright licensing for its software.

Similarly, Creative Commons consists of a set of modular copyright licenses for artistic works. We assume that it is not the intention of WIPO to declare copyright in general outside its scope. So our recommendation is to rephrase point B22 along the lines of intensifying activities for all uses of the copyright system, including Free Software and Creative Commons.

Regarding items A18 and 25 as well as C13,15,16 and 18, the Free Software Foundation Europe would like to direct the attention of the assembly to the difficulties of the European Commission in trying to reestablish a competitive market in Europe vis-a-vis Microsoft. This case provides an excellent demonstration of the difficulties experienced by industrialised countries to limit monopoly abuse, and why publicly available technical specifications are not sufficient to maintain an Open Standard.

This is increasingly being understood by legislators in several countries, such as Denmark. In its motion B103, the Danish parliament defines an Open Standard along three criteria. Any such standard should be a) well documented with its full specification publicly available, b) freely implement able without economic, political or legal limitations on implementation and use, and c) standardized and maintained in an open forum (a so-called standards organisation) through an open process.

We also encourage delegates to take a look at the reasoning of the motion, which makes quite clear that Open Standards are essential to stop the spread of software dependencies from one group of users or organisation to another.

As the distinguished delegate of India pointed out in his statement, Free Software is an important element of capacity building, it is the best choice to give independence to governments, and it helps the ''common man and woman.'' We see this point as relevant in particular to items A2, 6, 7, 11, 12, 14 and 15, also B9, 11, 27 and 28 and C1, 3, 10, 11, 12.

Mr. Chairman,

Free Software is relevant to WIPO not only in terms of being licensed under copyright, it is also relevant in so far as WIPO is planning to make massive use of software for many of its Development Agenda activities, especially A11, 12, 14, B9 and D11.

For all these items, should the general assembly agree to move forward with them, Free Software and Open Standards will be essential building blocks for WIPO in its development related activities.

It is indeed our understanding that by spurring this debate, the Development Agenda can generally help WIPO to adapt to future challenges. It is increasingly understood that independence of political organisations and structures from the corporate interest of single vendors is a critical issue for democracy. Several political bodies around the world have already adapted their procurement policies in ways that will secure their independence and political mandate by demanding control over the software they depend on for their daily work. FSFE believes that WIPO as an organisation faces similar issues in all its activities, and should take them into consideration in due time.

As a closing remark let me add that FSFE also considers items E7 and 8 to be central in WIPOs quest for more transparency, democracy and all-stakeholder involvement. We therefore encourage all delegations to offer their support to these points.

Thank you, Mr. Chairman.

Statement by Mr. Georg C.F. Greve

Free Software Foundation Europe, President

UN World Summit on the Information Society (WSIS),
Civil Society Patents, Copyrights, Trademarks (PCT) Working Group, Co-Coordinator
First phase Civil Society representative, German Governmental Delegation

International Chamber of Commerce: represents small and large businesses in 130 countries. As competition policy is of concern to several delegates, we would like to offer some information. The International Competition Network is recently established.

[She?s speaking too quickly ? try to get her statement.]

Other bodies have done lots of work on competition - EU in particular. Useful for WIPO to avail itself of that, rather than engage in it here.

IFPI:

Represents over 1000 members around the world, many operating in DCs.

On Cluster A: strongly supports practical solutions to address and strengthen capacity building.

On cluster B: supports WIPO's work on relp between IP and Devlt.

Impt to recognize

IP laws already take into account the public domain.

International rights are minimum rights balanced with L&E. There is therefore no need to change the existing system.

DIS: strongly support eco studies, focus on optimizing economic impact of SMEs

International Federation of Pharma: [her computer crashed]

International Publishers Association:

Represents 78 publishers worldwide. Goal of encouraging reading particularly in DCs.
We are supportive of the WIPO DA discussions, even where these exceed the remit of WIPO in Art 3 of the WIPO Convention.

IP needs to be discussed in context.

1. We encourage delegates to narrow discussion should now narrow down the discussions to only those things that fall within WIPO's current remit it Article 3 of WIPO Convention.

2. WIPO should focus on areas that demonstrate the existence and extent of a problem.

C21, the issue is being addressed and solved for agricultural and other information.

HINARI program - in 2005, more than 3000 articles downloaded.

Experience has shown the key aspects are not IP related but there are other barriers.

FAO AGORA - up to date agricultural info in 69 DCs.

2006 program on UN environment journals.

A2K is a complex issue and many aspects are best addressed, and are being addressed elsewhere.

IFLA/EIFL/EBLIDA:

I am speaking on behalf of the library community represented by the International Federation of Library Associations, Electronic Information for Libraries and EBLIDA the European Bureau of Library Information and Documentation Associations.

We wish to submit a full statement for the official Report of this meeting but in the interests of saving the Committee time we will just comment on a few specific points from Annex 1 to PCDA/1/6/Prov.2.Our full statement will be on the table outside.

Concerning A12, we agree that developing and transition countries need assistance to make the transition to become able to compete more effectively. Libraries are essential partners for the WIPO Partnership Office to enable developing countries to compete in the knowledge economy.

The value and importance of libraries to the knowledge economy has been confirmed by the recent European Commission Communication on the European Digital Library, and by research reports regarding the British Library and Florida Public Libraries. The figures can be found in our full statement.

We support proposals B7, B8, B21 and D9 on the public domain. As we said at the last meeting of this Committee the public domain may not be accessible to all in the digital future if content is subject to a TPM. Leaving aside problems created by TPMs, content in the public domain is shrinking because of extended terms of protection, resulting in less content for creators to build upon and less content for the benefit of society.

We support the proposal of Chile for an obligation to notify works and inventions that fall into the public domain in a global database. Indeed, the notion of maintaining a centralised directory of public domain titles was one element of the U.S. Public Domain Enhancement Bill 2003. The proposal by Chile would provide a single global database that could be easily searched to determine whether or not a particular work remains under copyright protection or is in the public domain. We believe this is a concrete, practical step that would help to provide much-needed certainty for libraries and users alike.

Concerning C21, libraries support the vision of open access to research material. We believe that it is important to distinguish open access from the public domain. Open access is achieved by way of a licence, with the copyrights remaining either with the author or the institution. Access to publicly funded scientific and technological research is increased through an expanded ?information commons?.

We strongly support the setting out of a mechanism for increasing the international flow of technical information and we believe that open access provides one such working model. We believe that WIPO should raise awareness of the open access model amongst Member States and encourage exchange of policies and practices in this area.

Concerning B15 and B24 on access to knowledge, librarians know from their own experience that copyright is now creating barriers to access and the fair use of knowledge rather than promoting innovation. This is why mechanisms are needed to establish a proper international framework setting the norms by which copyright should be managed in such a manner which ensures that user rights are established and enshrined with respect to both analogue copying and the digital age. This would counter the trend towards the monopolisation and privatisation of information by ensuring that information remains publicly available to nurture education and innovation.

Access to knowledge is not just an issue for developing countries, but also for developed countries since knowledge is a universal tool and equal access is an important need for all.

Thank you, Mr Vice Chairman, for your attention.

CCIA:

The Computer and Communications Industry Association (CCIA) congratulates the chair and vice chair on their election and thanks the Committee for this opportunity to present its views. CCIA members represent a broad cross-section of the information and communications technology (ICT) industries, and collectively represent more than $200 billion in annual revenues across international technology markets.

We have long believed that information and communications technology drives economic growth and development, and we supports WIPO?s efforts to fashion global rules that do the same. One element of an effective development agenda is adequate intellectual property rights protection and enforcement, and WIPO has performed admirably in promoting that objective.

Given the successes, we submit that future efforts by WIPO should address the fact that the absence of limitations and exceptions can similarly impede investment in development by technology innovators and inhibit the transfer of technology. A successful knowledge economy requires a balanced IPR approach. This approach must protect the rights of creators while also establishing limitations and exceptions that allow technology innovators to utilize, transmit, and disseminate information.

In the absence of necessary limitations and exceptions, the more that artistic protection is favored, the more technological innovation may be discouraged. Attracting foreign technology thus requires both robust protection and robust limitations and exceptions focused on promoting technological innovation. An IPR regime tailored to account for innovative tools that utilize and disseminate the world?s information will foster the growth of a national information infrastructure and hasten the development process.

We are confident in the Committee?s ability to achieve a result that reflects these goals and we remain at the disposal of the Committee in its continuing efforts.

[Several others]

Meeting concluded.