WIPO's war against consumer interests
By James Love
September 29, 2005 (Geneva)
These are a few quick reflections on the WIPO General Assembly, or perhaps more aptly described as the WIPO war on consumer interests.
There are several issues in play at this year's GA, and they are really the same issues from the 2004 GA -- The Broadcast/webcast treaty, the proposed substantive patent law treaty (SPLT) and the WIPO development agenda.
The WIPO Secretariat, the US government (and to a similar extent, the European Commission) and right-owner interests have been increasingly alarmed at the new sophistication of the Geneva IP negotiators, and the new participation and influence of NGOs representing free software, development, libraries, free speech, digital rights, human rights, consumers, public health, and other civil society concerns. The 2004 decision to discuss the WIPO development agenda (DA) took people by surprise.
You can think of the WIPO DA as basically two parts -- a number of policy goals, such as to promote a treaty on access to knowledge, and other pro-consumer initiatives, and a set of process and structural changes in WIPO, including a move to a more evidence based analysis of the impact of proposed standards for intellectual property, and independent review of the technical assistance programs to developing countries.
The new strategy by the secretariat, the US and the right-owners (S- -RO), is to circumvent to the Geneva diplomats, who share information, coordinate and now have much stronger ties to a variety of experts on intellectual property, and to push decision making out to persons that the WIPO secretariat (and right-owners) find sympathetic or easy to manipulate. The Geneva delegates and stronger developing country delegations (like Brazil or India), are described as ideologues by the S-US-RO, and the people they identify as potential allies in developing countries are described as the "ip experts." Typically they come from local patent or copyright office, or ministries of industry. A well known example of this last year was a meeting in Casablanca, where WIPO invited certain people, sometimes in their individual capacity, and they manufactured a "consensus" to moving forward on the SPLT exactly along the lines of the US/EC position. This blew up, as countries distanced themselves from the outcome. The second attempt is taking place now, on the Broadcast/webcast treaty. The Broadcast/webcast treaty was beginning to face mounting criticism within the WIPO Standing Committee on Copyright and Related Rights (SCCR), and it was not moving toward a diplomatic conference in the GA, and it was one of the targets of the DA, which was seeking to slow down new IPR obligations until WIPO could become more evidence based and friendly to human rights, innovation and development.
The Secretariat, led by Deputy Director Rita Hayes (a former USTR head), then created a series of regional consultations on the Casting treaty. These meetings were not very transparent, consumer interests were rarely represented (consumer groups were given 10 minutes to speak in the Brussels consultation, and not invited to most other regional consultations), and only some countries attended. WIPO often went out of diplomatic channels to pick participants. Those who did attend had nice trips, sometimes in resorts, with per diem. For its efforts, WIPO organized its own team of gung ho supporters of the Casting treaty. Even though the presentations on the substance were highly misleading and unbalanced, the participants are these meeting were often the only people in a country that had a clue about the treaty, and in countries with low capacity to follow things, they became the policy makers. The US and EC Broadcasters and webcasters also funded their counterparts to participate in events and push for the most anti-consumer provisions. This was very effective in Kenya and in many other countries.
At the meeting this week in Geneva, WIPO had a very large cheering section from smaller developing countries for the most expansive set of rights, demanding a diplomatic conference as soon as possible.
John Dudas, the head of the US PTO, was representing the US the debate on the Casting treaty, telling WIPO how urgent it was to push for this treaty. Dudas did not mention that the entire treaty is contrary to US law, or that he has never even proposed such rights for broadcasters or webcasters in the US Congress.
At WIPO yesterday a compromise was reached with EC and the countries who oppose a quick decision on the diplomatic conference, effectively putting the decision off until at least two more meetings of the SCCR are held to discuss the substantive issues, and to come up with a narrower terms of reference for the treaty (righ now everything is included in the draft, including the longest terms, most expansive rights, and coverage of all web pages). The US was in the room while the compromise was reached, and did not object, but then waited for the main meeting to restart before they shot it down, apparently to keep the issue alive until they can trade it for something else. So we don't know yet where things stand on the casting treaty.
As it stands, the big push is to do this without any analysis of the impact of the treaty on copyright owners or the public, which is a victory for the broadcasters and the WIPO Secretariat and the USPTO, but a shame for a UN agency.
James Love
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