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Fwd: [Commons-Law] Dramatic End to WIPO SCCR Session

Hi all,

dis kam hier vor kurzem auf der Linux User Group Victoria an.


-------- Urspruengliche Nachricht --------
Betreff: Fwd: [Fwd: [Commons-Law] Dramatic End to WIPO SCCR Session]
Von: Russell Coker <russell@coker.com.au>
Datum: Mon, 22.11.2004, 03:46
An: luv-talk@luv.asn.au

----------  Forwarded Message  ----------

Really weird things happening at WIPO, the Intellectual Property
Looks like it's now biting its own tail (and more) really
bad. If I read this correctly, the look alike of the 'Washington
consensus' on global IP is  breaking down real fast...

---------------------------- Original Message
 Subject: [Commons-Law] Dramatic End to WIPO SCCR Session
From:    "Shyamkrishna  Balganesh" <skbalganesh@rediffmail.com>
Date:    Sat, November 20, 2004 11:47 am
To:      commons-law@sarai.net

A futher update from Geneva...

On the last day of the SCCR-12 session here, during final discussions
on the WIPO Broadcast Treaty, something absolutely unheard of during
WIPO Standing Committee negotiations happened.

Towards the middle of the third day (around noon), it soon became clear
that consensus would not be reached on several issues. For instance,
the US insisted on the inclusion of webcasting, Brazil on the deletion
of technological protection measures altogether and so on. The normal
procedure at an SCCR session is that at the close of discussions, the
chair drafts a tentative conclusion which is then discussed and
modified by member nations, and then finally accepted as the conclusion
of the whole standing committee. Prior to the end of discussions, the
Brazilian delegation had made it clear that it was not in favour of
regional consultations, but would prefer an inter-sessional
consultation meeting. This proposal was supported by the delegations of
India and Egypt.

(Note: The rationale here appears to be that the WIPO Secretariat is
pushing for a 'divide and rule' approach to getting consensus on the
treaty. Since the major dissenting voices on the treaty are each from
different parts of the world - India, Brazil, etc - a regional
consultation process would isolate these countries within their local
regions and prevent them from coordinating their oppositional efforts.
Consequently, these countries viewed the regional consultation process
as totally uncalled for.)

When the chairman returned after lunch with his draft conclusions, it
was clear that there was no consensus on the substantive parts of the
treaty. In addition, the chairman did not include Brazil's proposal for
an inter-sessional conference even as an option. Brazil immediatelz
objected to this conscious omission and was joined by India - which
even suggested alternative language to leave both options open. The
chairman then suggested deferring the decision to the WIPO Secretariat.
Brazil immediately raised an urgent point of order (which gets priority over
all other interventions and entitles a member to a right to intervene)
and pointed out that leaving this decision to the Secretariat was
improper since the WIPO was a member-driven organization and not a
secretariat-driven one. Now began the entire drama...

The representative of Serbia immediately took the floor as another
point of order and pointed out that under the WIPO Rules of Procedure,
Rule 14 mandates that when making a point of order, a member nation was
not to advance argument on a substantive issue at all and that Brazil
had violated this by clubbing his argument on the member-driven nature
of the organization with his plea for an inter-sessional consultation.
The chair thanked the Serbian delegate for the intervention. Almost
instantaneously, Indian flag went up - on another point of order!

The Indian delegate agreed with the Serbian delegate's point, but noted
that India had always believed that in a forum such as the present one,
the substance of an argument was more important than its form, as far
as rules went. Nevertheless, he pointed out that if the SCCR wanted to
get procedural, he was ready to play along and then out of the blue
(quite literally) pointed to a provision in the WIPO Rules of Procedure
which indicated that a single person could not be elected as chair of
the SCCR for more than a single meeting and since the present chair
(Mr. Jukka Leides, from Finland) had been chair for the last several
meetings, his very appointment was procedurallz invalid. The chair was
shocked; he didnt know what to say. For the first time, a country was
questioning his very election as chair.

The WIPO legal counsel then intervened to point out that at the 3rd
SCCR Meeting, the committee had decided to deviate from the Rules of
Procedure in this respect. This wasnt going to be enough for India. In
a series of exchanges, reminiscent of a courtroom, the Indian delegate
drove home the point that each SCCR was an independent committee, and
consequently, what the 3rd SCCR adopted (ie., the deviation) was
binding only on it, and not on subsequent sessions unless they too made
a decision to adopt the rule, prior to the chair's election.
Consequently, he pointed out that the procedural illegality persisted;
the WIPO legal counsel didnt have an answer to this. It appeared that
things were heading to a stalemate - all because of the Brazil-India

The chair suggested that since there was a deadlock and no consensus on
most issues, the conclusions he had drafted could (under WIPU Rules of
Procedure again) be categorised as the 'chair's conclusion' rather than
the 'committee's conclusions'. India once again raised its flag on a
point of order and objected that this would be right either - since the
very validity of the chair was being called into question, it wouldnt
be the chair's conclusions but the conclusions of the Finnish delegate
occupying the chair at the moment (!!). The chair didnt have an answer
to this either. Nothing seemed to be working and it appeared that the
entire SCCR proceedings were going to be abruptly terminated.

Normally, at SCCR meetings all decisions are made by a consensus - an
issue is nver put to vote. The SCCR is considered the expert body of
the WIPO and the actual diplomatic process (i.e., voting) is left to
the next stage, the diplomatic conference convened by the General
Assembly. When all of this was happening, the chair soon realised that
if he didnt do something drastic, the stalemate would continue. In an
absolutely unprecedented move, he asked countries to make a show of
support for his proposal by raising their flags. This is most unusual -
since a vote is never taken at an SCCR (sînce there are dissents on
all provisions) and even at other proceedings, it is always for the
proposal of a member nation, not of the chair. In the end five
countries including India and Brazil placed on record their
disagreement by raising their flags and large number of other countries
voted to have the chair's proposal accepted. Notably, the US and EC
abstained from the entire vote - probably indicative of their
disagreement with the procedural validity of it all.

All of this means that the SCCR is unlikely to be able to push the
treaty through in the immediate future. Having set a dangerous
precedent of having a vote taken in Standing Committees, countries are
now likely to call for a vote on most controversial issues. When the
issue is one on which the division is along North-South lines (which
wasnt the case here, since many small developing countries were seeking
to keep their large trading partners happy), the developing countries
are certain to have the upper hand. It also means that in the future,
the smooth functioning of the WIPO is likely to be repeatedly
disrupted. For the SCCR, this of course means that the chairmanship of
the current incumbent is likely to be a hotly contested issue during
the next session - both politically and legally, given the Indian
delegations comments. It also remains absolutely unclear on what the
countries were voting - whether the conclusion is going to be the
chairman's draft after all and the legal validity of such a draft. In a
sense, the entire last couple of hours effectively threw the process
into a sort of anarchy with no one being clear on what finally
transpired, legally. An answer to the Indian delegation's challenge to
the validity of the chair's election was not provided and the chair
left the room immediately after close of the proceedings.

The acrimony generated by these events is likelz to spill over into all
of the WIPO's future activities and hopefully, it will begin to realise
that its mandate isnt necessarily stronger intellectual property
rights, as much as it is one of ensuring greater balance within the
existent rights frameworks. Again, transcripts of the day's proceedings
are available at the website of the Union for the Public Domain (UPD)
at <http://www.public-domain.org>.

I was extremely impressed with the Indian delegation, which did a
spectacular job, exhibited a critical awareness of the problems
developing countries face with IP expansion and accepted the
responsibility of challenging WIPO's apparent one-sidedness in the face
of stiff international and political opposition. I personally spoke to the
Indian delegation and commended them for what they were doing....I
think they made us all very proud and gave us hope for the future.

- Shyam.

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