Identifier
Created
Classification
Origin
09GENEVA416
2009-06-04 11:38:00
UNCLASSIFIED
US Mission Geneva
Cable title:  

Third Session of the WIPO Committee on

Tags:  ECON KIPR WIPO 
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VZCZCXYZ0006
RR RUEHWEB

DE RUEHGV #0416/01 1551138
ZNR UUUUU ZZH
R 041138Z JUN 09
FM USMISSION GENEVA
TO RUEHC/SECSTATE WASHDC 8478
INFO RUCPDOC/DEPT OF COMMERCE WASHINGTON DC
UNCLAS GENEVA 000416 

SIPDIS

STATE FOR EEB, IO/T
COMMERCE FOR USPTO

E.O. 12958: N/A
TAGS: ECON KIPR WIPO
SUBJECT: Third Session of the WIPO Committee on
Development and Intellectual Property

UNCLAS GENEVA 000416

SIPDIS

STATE FOR EEB, IO/T
COMMERCE FOR USPTO

E.O. 12958: N/A
TAGS: ECON KIPR WIPO
SUBJECT: Third Session of the WIPO Committee on
Development and Intellectual Property


1. SUMMARY: The 3rd session of the WIPO Committee
on Development and Intellectual Property (CDIP)
moved ahead (slowly) in its implementation of 45
recommendations concerning development and IP.
These recommendations were approved by the WIPO
General Assemblies (GA) in October 2007. In the
first two sessions of the CDIP, Member States
approved activities and work programs for 11
recommendations and initiated discussions on another
four recommendations. The focus of discussion in
the third session included new activities to
implement eight related recommendations under three
broad themes: IP and the Public Domain; IP and
Competition; and IP, Information and Communications
Technology (ICTs) and the Digital Divide. Reaching
agreement on the activities for these eight
recommendations will allow the WIPO Secretariat to
seek funding for their implementation during the
2010/2011 program and budget meetings in the fall.
Debate also centered on how to coordinate and report
on development agenda implementation with other WIPO
committees.
END SUMMARY.


2. The Third Session of the CDIP was held from
April 27 to May 1, 2009. 111 Member States and 49
Observers participated in the meeting. U.S.
delegation members were Michael Shapiro, Senior
Counsel, Office of Intellectual Property Policy and
Enforcement, USPTO (head of delegation); Neil
Graham, Attorney Advisor, Office of Intellectual
Property Policy and Enforcement, USPTO; Carrie
LaCrosse, Foreign Affairs Officer, Office of
Intellectual Property Enforcement, U.S. Department
of State; and Deborah Lashley-Johnson, IP Attache,
U.S. Mission, Geneva.


3. At the start of the meeting, and per the
invitation of the Chair of the CDIP (Ambassador
Trevor Clarke of Barbados),Director General Francis
Gurry addressed the Committee. The DG reiterated
his personal commitment to the Development Agenda,
and noted that all sectors/divisions of the
Organization would contribute to ensuring that all
recommendations are implemented and integrated into
WIPO?s activities. He explained that coordination
of the implementation of the Development Agenda
would be the responsibility of the Development
Agenda Coordination Division (DACD),which reports
directly to him. The Director General emphasized
that implementation of the Development Agenda

recommendations is a shared responsibility of the
Secretariat and WIPO Member States. The Director
General also highlighted the importance of reporting
and evaluation, and expressed his commitment to
report to the CDIP annually on the implementation of
recommendations.

SLOW GOING: Focus on the Past
--------------


4. Despite the commitment demonstrated by the DG on
effective implementation and coordination, certain
delegations engaged in extensive, time-consuming,
and substantially unproductive discussion of ongoing
WIPO activities to implement 19 recommendations
already approved by the 2007 GA for early
implementation. India, Egypt, Sri Lanka, and South
Africa were particularly active in questioning WIPO
?expert? staff members on these activities, setting
a contentious tone for the meeting.


5. On day three, discussions opened regarding a
proposed, new ?thematic approach? to the work of the
CDIP. Under the thematic approach, activities
proposed by the Secretariat to implement identical
or similar elements of selected GA-approved
recommendations would be grouped under a single
theme (such as ?IP and the Public Domain? or ?IP and
Competition?) and assigned to a single WIPO project
manager. The new approach was previewed in two
informal ?information sessions? in advance of CDIP

3. Group B (group of industrialized countries),the
United States and a few other member governments
intervened to support the new approach, which was
generally viewed by these countries as time-
efficient and financially prudent (eliminating
potential duplicative activities). However, certain
developing countries intervened repeatedly to demand

certain procedural and substantive safeguards (to
ensure that the process remained ?Member State-
driven" and that the proposed projects would not
exhaust the recommendations). In particular, India,
Pakistan, Sri Lanka, Egypt, Brazil and South Africa
asserted that for recommendations that had not yet
been discussed, guarantees were needed to ensure
that the projects fully and adequately implemented
the recommendations. Further, these countries said
that the new thematic projects were based on
recommendations that had (for the most part) not yet
been discussed, and were therefore problematic. To
address these concerns, Chairman Clarke tabled his
own document (?Conditions for Thematic Projects?),
which appeared to be aimed at closing the discussion
of the proposed ?thematic approach? and opening the
discussion of the thematic projects themselves.
However, contentious debate ensued over the
document, and the Chairman withdrew his document.
Nonetheless, general agreement was reached that: (i)
each recommendation would be discussed first in
order to agree on the activities for implementation;
(ii) recommendations that dealt with similar or
identical activities would be brought under one
theme, where possible; and (iii) implementation
would be structured in the form of projects and
other activities, as appropriate, with the
understanding that additional activities may be
proposed.

NEW ACTIVITIES
--------------

6. On days four and five, the Committee finally
moved forward in its discussion of proposed new
activities for recommendations under the themes
concerning IP and the Public Domain; IP and
Competition; and IP, ICTs and the Digital Divide.
The US delegation intervened to support the full
range of the proposed public domain activities,
including a proposed pilot exercise to establish a
national traditional knowledge (TK) database to
prevent the granting of erroneous patents. In the
end, the CDIP ?broadly agreed? to move forward on
the activities to implement the public domain
thematic project. However, on the basis of an
intervention by Brazil, and to US displeasure, this
component of the project was dropped. In its place,
CDIP members instructed the Secretariat to begin a
survey of existing national TK databases, with a
longer term view of establishing a WIPO TK portal
with links to national TK databases.


7. Brazil also tabled a three-part amendment to the
TK database project to advance within CDIP its
longstanding proposal (within the WIPO Standing
Committee on Trademarks, Geographical Indications
and Industrial Designs, SCT) on the ?Non-Exhaustive
List of Customary Names Used in Brazil Associated
with Biodiversity,? which drew a sharp response from
the US delegation. Under the proposed amendment,
the Secretariat would be required to (1) publish
Brazil?s list of 5,000 names falling into this
category, (2) conduct an investigation of the
misappropriation of such names (beginning with cases
supplied by Brazil, which would be likely to target
U.S. companies),and (3) prepare a study on the
?adverse impact? of such misappropriations on
Brazil?s indigenous populations.


8. In response, the US delegation reminded CDIP
members that the Brazilian proposal raised complex
issues of trademark law (such as the territoriality
of trademarks and diverse national concepts of
?distinctiveness),which are under active
consideration in the SCT. The US went on to say
that the SCT is the appropriate committee for
consideration of this proposal because of its
subject matter expertise. Finally, the US
delegation noted that the Brazilian amendment raised
important issues of how the CDIP would coordinate
its work with other WIPO committees. However,
Brazil was very adamant in having its proposal
approved by the Committee, arguing that any CDIP
member could table any amendment to any proposed DA
implementing activity at any time, without regard to
the work program of other committees. Brazil also
took the Secretariat to task for using ?scarce
resources? as a pretext for hobbling DA activities
proposed by Member States (a view later supported by

India and other delegations) and for the
Secretariat's earlier suggestion that Brazil should
have tabled a written proposal to give the
Secretariat and Member States sufficient time to
review it. In addition, Brazil threatened to
withdraw its support for the thematic approach
entirely, which the Brazilian delegation
characterized as conditioned on its understanding
that Member States would be unfettered to propose
and modify any activity before the CDIP. The US
reminded the CDIP that, like all WIPO committees,
the CDIP was governed, among other things, by
adopted Rules of Procedure, pointing specifically to
Rule 21 (governing the tabling of proposals by
delegations). The US further argued that Brazil?s
proposal was very complex and dropped on Member
States without prior notice or a formal written
submission.


9. With respect to the proposed thematic project on
"IP and Competition Policy," the US delegation
intervened to raise general concerns and specific
questions to this proposal, consistent with
interagency cleared instructions. With the
assurance given by the Secretariat that the project
would be non-normative in nature, non-duplicative of
IP related competition activities undertaken in
other international organizations, and any WIPO
activities conducted in this area would be on a
policy-neutral (given lack of an international
framework and the diversity of views on competition
policy among countries and regions),the US
delegation decided not to block consensus on this
proposal. However, on the basis of the same
concerns expressed above, the US intervened to
oppose a proposal tabled by the delegation of Egypt
to amend the competition project to include the
preparation by WIPO of a ?Guide? on anti-competitive
practices, a proposal that is likely to be re-
introduced in CDIP 4 at the November 2009 meeting.


10. Late on the last day of the meeting, the CDIP
took up discussion of a thematic project on the ?IP,
ICT and the Digital Divide,? which sets forth
activities to implement three recommendations,
including Recommendation 19 (which states the goal
of facilitating ?access to knowledge and technology
for developing countries and LDCs? as part of WIPO's
norm setting activities). The delegation of Egypt,
supported by India, intervened to request the
Secretariat to remove Recommendation 19 entirely
from this thematic project largely because Egypt and
others argued that the concept of facilitating
?access to knowledge? was sufficiently broad and
important to warrant separate implementing
activities. While the US could not support removing
the projects' reference to Recommendation 19, DG
Francis Gurry suggested adding the phrase ?Access to
Knowledge? to the title of the project in an effort
to bridge differences. The US delegation accepted
the DG?s suggestion, and Egypt and others eventually
agreed, on the condition that the project document
note that Recommendation 19 is only ?partially
implemented? by this project.

OVERSIGHT ARGUMENTS
--------------

11. The Committee discussed coordination mechanisms
and modalities for monitoring, assessing and
reporting on the implementation of recommendations.
The Committee decided that interested Member States
may submit their proposals to the Secretariat by
June 30, 2009. These submissions, in addition to
the ideas offered in the discussions during the
present session, will be compiled and presented to
the fourth session of the CDIP for further
discussion and possible decision on this subject.
Discussion on this issue was highly contentious as
both the Africa Group and Pakistan, supported by
other Asian countries, tabled proposals giving the
CDIP broad-ranging authority to interact with the GA
and other WIPO Committees while also diminishing the
role of the Secretariat in coordinating development
agenda programs and activities. The African
proposal, for example, called for the creation of a
new, freestanding Working Group under the authority
of the CDIP (composed of the Chairs and Vice Chairs
of all WIPO committees and regional coordinators
plus two). Pakistan?s proposal called for all WIPO

reports, studies, documents and negotiating texts to
incorporate the DA recommendations on norm-setting.
In its statement, Group B rejected the formation of
new CDIP coordinating bodies, instead proposing a
broad set of principles that would discharge this
part of the CDIP?s mandate consistent with
longstanding WIPO procedures applicable to all
committees. The EU, US, Canada and Korea also
expressed disapproval with establishing new
coordination mechanisms, with the UK making a
particularly strong intervention, noting that the
CDIP itself was the ?coordination body? envisioned
by the GA. This debate will likely continue in CDIP
for some time, as Egypt persisted in arguing that
submissions of Member States on coordination should
allow sufficient time to bring these proposals to
the attention of the 2009 GA (which for timing
reasons will not occur) and proposed conducting
informal consultations between CDIP 3 and the 2009
GA, which was rejected by the US.


12. The next CDIP meeting is scheduled for November
16-20, 2009. The Chair?s summary of the 3rd session
of CDIP can be found at:
http://www.wipo.int/edocs/mdocs/mdocs/en/cdip _3/
cdip_3_summary.pdf

STORELLA#