In the latest shot across the bow by developing nations fighting to broaden the agenda at the U.N. World Intellectual Property Organization, the Group of Friends of Development, comprised of the fourteen developing nations spearheading the WIPO Development Agenda, has just issued a statement rejecting the outcome of a recent meeting held in Casablanca on the proposed "Substantive Patent Law Treaty," and challenging the authority of the Director General to convene it. This is the latest instance of growing frustration with WIPO's operating procedure and lack of transparency.
The Group is presumably lodging the procedural objection as a way to address a more substantive issue: the use of regional consultations to "divide and conquer" developing country opposition to proposals put forward by the United States, Japan and Europe. Regional consultations are generally held in far-flung corners of the world, unreachable by civil society NGOs on a low budget and less likely to covered by the press. There are generally no formal requirements to invite any single country, and some countries have argued that the Casablanca meeting excluded countries that expressed vocal opposition to the wealthy nations' proposals.
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On the procedural point, the Group argues that the WIPO Director General violated the General's Assembly's unanimous agreement "that the dates of the next Standing Committee on the Law of Patents (SCP) should be determined by the Director General following informal consultations that he may undertake." Since the "informal consultations" in Casablanca concluded with substantive decisions other than the dates of the next Committee meeting--including a recommendation that WIPO accelerate its work on four areas of interest to the United States, Europe and Japan--the Group argues that the Director General acted beyond the authority granted by member states.
I think this legal interpretation is open to debate. On the one hand, the text could be read so as to indicate that the purpose of regional consultations was solely to set a date for the meetings. On the other hand, the text could be read as saying that a determination of meeting dates should be one of the outcomes of these consultations, but not necessarily the only one.
It is difficult to discern the intent behind the language from the General Assembly meeting notes. What is clear from the record is that there was significant opposition to the U.S./Europe/Japan proposals for narrowing the scope of discussions on the Substantive Patent Law Treaty. But it seems from the WIPO press release issued after the Casablanca meeting that the purpose of this regional gathering was to corral support for the wealthy triumvirate's agenda. The release quoted a statement adopted by meeting participants (except Brazil, which did not associate itself with the text) that,
[T]he following six issues should be addressed in an accelerated manner within WIPO with a view to progressive development and codification of international intellectual property law: prior art, grace period, novelty, inventive step, sufficiency of disclosure and genetic resources. These issues should be addressed in parallel, accelerated processes, the first four issues (prior art, grace period, novelty and inventive step) in the [Standing Committee on Patents] (SCP)...
These four issues are the same ones pushed by the United States, Japan and Europe in a proposal to the General Assembly to narrow the SCP work plan. This proposal was roundly rejected by developing countries in the September-October 2004 session of the General Assembly, as it had been in the May 2004 meeting of the SCP.
As reported earlier, a number of developing countries opposed to this proposal were not included in the February Casablanca meeting. Of the eleven countries that spoke against the proposal at the September-October meeting, six were not present in Casablanca, including Egypt, Iran, Sudan, El Salvador, Argentina, Venezuela, and South Africa. Two weeks ago, IP Watch quoted a developing country official as saying, "Clearly, the [WIPO] international bureau and the developed countries are trying to bypass WIPO's formal decision-making channels... They have come to realize that when multilateral debate and decision-making is allowed to place in a more open, inclusive and transparent setting, such as the formal meetings in Geneva, they cannot get their way."
Objections to the use of seemingly benign regional consultations for the purpose of dividing and conquering is not new at WIPO. Last November, Brazil, India and others raised similar objections during negotiations over the Treaty for the Protection of Broadcasting Organisations (a treaty that will protect broadcasters' bottom line at significant cost to the public).
In the final hours of the copyright committee's meeting in Geneva, where civil society NGOs were able to participate and the press could easily cover negotiations, the chairman proposed that regional consultations be held to accelerate the bumpy process. Some participants saw this as a move to marginalize opposition to the treaty, and the most vocal developing countries objected that convening the meetings violated an earlier directive that regional consultations would only be considered if requested by regional groups. At the time, Brazil intervened from the floor and said:
The language you have suggested for regional consultations...seems to suggest...that the members of the committee have agreed to convene these regional consultation meetings. In fact that hasn't happened.... The fact is that we have had not time to discuss any of these suggestions, including the one on regional consultations.
The Group is now framing these procedural issues as obstacles to the Development Agenda. The first paragraph of their statement reads, "Recall that an inclusive, transparent and open-ended modus operandi is a core element behind the idea of making WIPO and the intellectual property system more responsive to the needs and interests of developing and least developing countries."
This framing is appropriate because procedural opacity and regional consultations tend to work against the least powerful members of WIPO. The only way that we will ever have a substantive debate about the effect of intellectual property laws on access to knowledge in the developing world will be if the issues are forced onto the floor of the WIPO assembly hall. Partisans of increasing monopoly protections for copyright and patent owners have a responsibility to confront these issues in the full light of democratic deliberation.