New WIPO Committee on Development and Intellectual Property (CDIP) set to meet in March

WIPO's new Committee on Development and Intellectual Property has set its first meeting date for March 3-7 2008 in Geneva. The committee has three main tasks. First, and most immediately, it will develop a work-program to implement the development agenda recommendations made in June. It will also monitor and assess on the implementation of the development agenda, as well as undertaking further discussion on IP and development.

Get ready!

Copyright watchers are gearing up; a new copyright bill is said to be waiting in the aisles for introduction to the House in the next couple of weeks. By many accounts it will be a step back in time for Canada if this bill passes unaltered. Michael Geist:

The new Canadian legislation will likely mirror the DMCA with strong anti-circumvention legislation - far beyond what is needed to comply with the WIPO Internet treaties - and address none of the issues that concern millions of Canadians. The Conservatives promise to eliminate the private copying levy will likely be abandoned. There will be no flexible fair dealing. No parody exception. No time shifting exception. No device shifting exception. No expanded backup provision. Nothing.

Geist has a few ideas about what we should all be doing right now to try to steer this bill in a more progressive direction. It's going to be an uphill battle; apparently Industry Minister Jim Prentice doesn't want to discuss this in public.

Jane Rule

Jane Rule, the great Canadian author and activist against censorship, passed away last night. I greatly admire Jane Rule and so would like to share a story she told during in her testimony at the Little Sisters trial in 1994 regarding Canada Customs' censorship of books coming in at the border. Some of Jane Rule's own books had been detained, though not prohibited, by Customs. In her testimony she offered her views, as an author and academic, on the merits of many of the books that had been thereto detained. She also told the following story:

I have had the experience of knowing one Customs officer because he was was in a class of mine at UBC, English 100, the freshman English class.
I had been assigned a special class, a particularly small class of students, all of whom had failed English 100 once and some of them had failed it twice, and as many of you may know, if you fail English 100 three times, you're out of the university. So these were fairly desperate students....The young man in question had failed it twice, and if he was going to fail again, then he was out of the university. He did marginal work and I think if he had worked very hard he might have gotten a gentleman's C an gotten through, but he only did half of his assignments. In the spring, he came to me and said, "I'm really being frivolous. It's time for me to go out in the real world and earn a living and stop being a silly child." I thought that was a very sensible decision for him to come to.
Shortly after that, he came to me, and asked me if I would give him a letter of recommendation to be a Customs official for Canada Customs. I thought at that time that he was a personable young man, he's good with people and probably he would make a good Customs officer, so I was perfectly willing to give him a letter of recommendation. I was not aware at that time that such a person would be given the responsibility of censoring books coming in to Canada.

Update Dec 3: I see from the G&M private obituary today (also here) that there will be a Jane Rule Endowment for the Study of Human Relationships at UBC, towards which the family is collecting donations.

WIPO Director General to step down

WIPO's Director General Kamil Idris has announced in an email that he will step down a year early. Member states will now be invited to submit candidates for the appointment of a new Director General at the next session of the General Assembly in September 2008.
IHT reports.
My previous post:Canada supports discussion on ouster of WIPO director general?
Update: a circular has been posted by WIPO with the details about the nomination process.

IMSLP: The End of Canadian Copyright?

A Canadian musical Project Gutenberg was taken down on Friday in the most disturbing of stories. The International Music Score Library Project allowed users to post copyright-expired sheet music online. The project was run by a student for the most honorable of reasons:

"As a musician and music lover, I find unacceptable the fact that such a wonderful thing as music can be so inaccessible in certain regions of the world. I believe that access to our culture and the Arts is a fundamental right of every human being, and not simply a privilege. Therefore, I had created IMSLP with the intention that music, which is in the public domain, should be freely accessible to every single person."

By accounts (Michael Geist and Howard Knopf give very good ones), the site fully complied with Canadian copyright law, where the copyright term is life + 50 years, because it only published the music of composers dead longer than that. The problem? Universal Edition AG argued that the site was infringing copyright in other countries, where copyright is life + 70 or even life + 100 (Mexico) years.

The site, however, is in Canada, run by a Canadian. By accounts (Michael Geist and Howard Knopf again), the site therefore is therefore subject to Canadian law - not European or American or Mexican law.

If the Universal Edition AG logic takes hold, it means that Canadian copyright laws don't matter on the Internet. It means that Canadians would be obliged to comply with whatever the highest, most absurd level of copyright protection in the world happens to be, no matter what Canadian law might say about it. Either that, or Canadians could wall-up Canadian web sites so that other high-protectionist countries can't access them.

The student who ran IMSLP can't fight Universal Edition AG. His call for others to take up the torch and keep IMSLP online is moving and inspiring and hopefully will lead to a bigger fight.

As a Canadian, I have a certain satisfaction in knowing that Canada, so far, has stuck with life + 50. And, as a former music student, I also know how very expensive sheet music is (including online; I've written elsewhere about crappy online sheet music stores). Even that which is "in the public domain" is accessible only to the very privileged and quite unaffordable to most music students. I don't know how many music books I've left at the store; the prices are astronomical. Even home-written guitar-tab sites are also being shut down by music publishers.

If Universal cared about music, it would be offering to sponsor this site with ads, not shutting it down, along with Canadian copyright sovereignty.

Implementing the Development Agenda for WIPO

Commentary and events related to implementation of the development agenda at WIPO:

• WIPO will hold a traveling workshop on the role of intellectual property as a tool for development in Geneva, Oct 15-16 2007 and in Conakry, Guinea, Oct 18-19 2007.
  
• Canada's Edge Network will hold a workshop on implementation of the WIPO development agenda at their Vancouver annual general meeting October 15, 2007.
• IP-Watch reported on the formal approval of the development agenda at WIPO
  
• The Centre for Technology and Society at Fundação Getulio Vargas (FGV) issued a statement on September 28 making a number of recommendations on the development agenda implementation
  
• IP-Watch reported that 19 of the 45 development agenda proposals were suggested for early implementation, as these 19 do not require additional resources to implement. They also report that a 16% increase in the "Strategic Us of IP for Development" budget was requested by the WIPO secretariat.
  
• IP-Watch reports on the Trans-Atlantic Consumer Dialogue Conference of September 17, 2007, which discussed implementation of the WIPO development agenda. IP-Watch recounts various commentators' views on what priorities should come first
• Sisule F. Mungusu comments in his blog on the development agenda proposals and their implementation
• ICTSD held a half day seminar in Geneva in June 2007 on implementation of the development agenda, in which they explored the African and Chilean experience. As well, Carolyn Deer, founder of IP-Watch, discussed hurdles to implementation at national and regional levels

There are also a number of efforts to apply development agenda ideas to the field of Internet governance.

• GigaNet, an academic conference that runs alongside the Internet Governance Forum, will explore how to apply the idea of a 'development agenda' to Internet governance at this year's conference, November 11, 2007 in Brazil
  
• The International Institute for Sustainable Development (IISD) is currently exploring the idea of sustainable development in Internet governance in an e-conference based around 10 commissionned papers hosted online

I will try to add to these lists as I see more.

Development agenda adopted at WIPO

According to Thiru Balasubramaniam, the development agenda has been adopted today at WIPO. The 45 items proposed by the development agenda committee have been adopted by the General Assembly for immediate implementation, and a new Committee on Development and Intellectual Property (CDIP) will be established. The CDIP will meet twice a year. At its first meeting, the financial and human resources required to implement the development agenda will be discussed.

Broadcast Review and Copyright

The recently published review of Canadian broadcasting policy by Laurence Dunbar and Christian Leblanc makes a number of recommendations with regard to copyright and Canadian broadcasting.
First, the report provides a primer on the main areas in which CRTC policy intersects with copyright policy.

• Signal substitution. The first copyright-related area of broadcasting policy is signal substitution. Here, the CRTC acts "to protect programming rights" through simultaneous substitution, wherein cable companies substitute Canadian signals over simultaneous American broadcasts of the same programming. This protects "the value of the local rights to television programming acquired by over-the-air broadcasters," allowing Canadian broadcasters to have a monopoly on the advertising market for that program. (p. 59-60)
  
• Retransmission. The second copyright-related area of broadcasting policy is retransmission. Here, the Copyright Act gives cable companies a statutory right to retransmit local and distant signals. In the case of distant signals, they must pay royalties set by the Copyright Board. This statutory license was argued to apply equally to Internet broadcasters like JumpTV and ICraveTV, but legislation passed in 2002 restricted the statutory license to offline broadcasters only. A public consultation by the CRTC led it to conclude that no change was necessary to CRTC policy with regard to this issue.
• CRTC regulations referred to by the Copyright Board. The report notes that some CRTC regulations are referred to by the Copyright Board in setting royalty rates, and that changes to those regulations can affect the royalty rates paid by broadcasters. CRTC regulatory changes can therefore require copyright collectives to update their royalty regimes to compensate for CRTC regulatory changes that would adversely affect broadcasters' royalty payments. Delays by copyright collectives in doing so can, in turn, delay CRTC regulatory changes. (p. 65-68)
• Concerns about competition from copyright-infringing Internet content. The report makes note that copyright-infringing content on the Internet may be cutting into broadcasters' audiences. (pp. 75, 243) "Other than copyright laws," the report observes, "there are no protections currently in place to shield Canadian broadcasters from the effects of Internet-based programming." (p. 76) However, the CRTC has seen that, in radio at least, broadcasters remain fiscally healthy despite the challenges of new media and online competition. (p. 21)
  

Second, the report makes several recommendations:

• The report recommends that the CRTC become involved in a multi-disciplinary committee to address policy areas that fall outside the CRTC's mandate, such as copyright policy. (p. 28, recommendation 4-5) In general, the report argues that "there is a case for the Commission paying closer attention to issues relating to copyright and copyright policy when it is exercising its authority to regulate the broadcasting system, and for the Commission to coordinate its efforts with those government bodies that are responsible for copyright where there is an overlap between broadcasting regulation and copyright policy or enforcement as it relates to broadcast undertakings." (p. 59)
• The report recommends reevaluation of the simultaneous substitution policy in light of its effects on the scheduling of Canadian programming. (p. 50, recommendation 6-3)
• The report recommends that the CRTC's exemption for New Media should be reassessed: "Many of the observations made by the Commission regarding New Media and Internet
  retransmission in 1999 and 2001 about the nature of the Internet are no longer valid
  and need to be re-assessed." (p. 68) However, such a reassessment should not go too far: now that geo-blocking can be effectively carried out (Internet sites can effectively control which geographical regions can view them), concerns that Internet broadcasting could undermine territorial licensing of broadcasts are no longer justified, and companies like JumpTV need not break the boundaries of territorial markets. Although these companies do not presently benefit from the statutory license under the Copyright Act, they are able to set up private licensing arrangements with rights holders, and the CRTC New Media exemption means that they do not conflict with CRTC regulations. This is, the report recommends, the way it should be: "We recommend that, to the extent that private licensing agreements among producers, distributors, and broadcasters continue to find ways to provide new business models and new platforms from which Internet users can access programming, the Commission be wary of interfering in this nascent market by attempting to introduce regulatory measures that could disrupt existing and developing business models." (p. 59-68, recommendation 8-1)
• The Report recommends a new national policy for electronic media, dealing with a variety of policy areas, including copyright: "Canada is in need of a national policy for electronic media, and needs to have available all of the tools of government to give effect to it. This
  likely includes copyright, fiscal measures, and new programs to incent Canadian participation in new media ventures. While it is beyond the jurisdiction of the CRTC to implement this national policy on its own, we urge the Commission to consult with other Governmental agencies and departments to begin such a process." (p. 78, recommendation 9-1)
  

Canada supports discussion on ouster of WIPO director general?

Intellectual Property Watch reports that Canada may be in support of a proposed agenda item for the upcoming (next week) meeting of the WIPO General Assembly. The proposed discussion (number 12 on the proposed agenda) pertains to the discovery that the WIPO Director-General Kamil Idris misrepresented his age by 9 years on official WIPO documents over many years, and suppositions that he may have advanced more quickly through the ranks at WIPO by appearing, as a result, to be older than he really was.
While, according to IP-Watch, many developed countries support further pursuit of this issue and call for Idris to step down (including the EU and Portugal, the current head of Group B of which Canada is a member), many developing countries support Idris, who is from Sudan. According to IP-Watch, some developing countries consider the whole issue to be a politically-motivated smear campaign over an issue that has been blown out of proportion and is insufficient to justify calls for Idris' resignation.

Intellectual Property Issues in ICT4D

My report, Intellectual Property Issues in ICT4D, is now available online. Prepared for Canada's International Development Research Centre, this report reviews intellectual property issues in the area of information and communication technologies for development (ICT4D). Issues covered include open access, Creative Commons, free and open source software, copyright limitations and exceptions, traditional knowledge, collective management organizations, competition policy, the WIPO development agenda, and the draft Access to Knowledge Treaty as they relate to intellectual property and developing countries.

Canada Objects to IP Clauses of UN Declaration on the Rights of Indigenous Peoples

Canada has expressed its intent to vote against the UN Declaration on the Rights of Indigenous Peoples, in part because of objections to clauses it includes on intellectual property. In a press release, Canada said, "We have stated publicly that we have significant concerns with the wording of provisions of the Declaration such as those on: [...] intellectual property[...]."

The intellectual property-related clauses in the treaty include:

Article 11
2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 31
1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural
heritage, traditional knowledge, and traditional cultural expressions.

CIPO updates business plan

The Canadian Intellectual Property Office (CIPO) has just updated their business plan. One element of the plan includes a focus on international copyright. According to CIPO's plan, CIPO will become more active on the international stage. In September, for example, CIPO will head the Canadian delegation to the World Intellectual Property Organization (WIPO)'s meeting of the General Assembly, where the proposed development agenda for WIPO will be voted upon. CIPO's Commissioner of Patents, Registrar of Trade-marks and Chief Executive Officer, David Tobin, led the delegation last year. Mary Carman took over his position in April.

Geist on The Canadian Telecom Complaints Commission

Michael Geist comments on the new Canadian Telecommunications Complaints Commission, launched yesterday, saying that telecom companies have acted independently on the Canadian Telecom Review Panel's recommendation to set up the Commission, thereby preempting the CRTC's oversight of its creation and related public consultations. The new commission, he says, comes without many of the elements recommended by the Canadian Telecom Review Panel. Such a premptive launch should have been prohibited; instead, the Industry Minister welcomes it.

Bush on Performers' Rights

Howard Knopf runs the funniest blog anywhere on copyright. Yesterday he reported some of President Bush's comments, and I just had to repeat them:

Q Mr. President, music is one of our largest exports the country has. Currently, every country in the world -- except China, Iran, North Korea, Rwanda and the United States -- pay a statutory royalty to the performing artists for radio and television air play. Would your administration consider changing our laws to align it with the rest of the world?

THE PRESIDENT: Help. (Laughter.) Maybe you've never had a President say this -- I have, like, no earthly idea what you're talking about. (Laughter and applause.) Sounds like we're keeping interesting company, you know? (Laughter.)

Look, I'll give you the old classic: contact my office, will you? (Laughter.) I really don't -- I'm totally out of my lane. I like listening to country music, if that helps. (Laughter.)

TM Win for Dykes on Bikes

The San Francisco Women's Motorcycle Contingent, otherwise known as 'Dykes on Bikes', has successfully defended their right to trademark their name after a man challenged the trademark, complaining that the term 'dykes on bikes' was offensive to men, scandalous and immoral. This isn't the first time the organization has had to fight for its name; the U.S. Patent and Trademark office originally rejected their attempt gain a trademark on the grounds that the term 'dyke' was offensive to lesbians.
SFGate reports.
Update January 8, 2008.

The Development Agenda at WIPO: Where is Canada?

The Development Agenda: A big win?
I am setting out here some of the arguments for a paper I am currently working on titled "The Development Agenda at WIPO: Where is Canada?" I would appreciate any comments.

I argue that many of the developing countries’ most potent WIPO development agenda proposals have been diluted, and that almost none of the proposals for changes to treaties or new treaties have survived at all. For the most part, (also see some of my preliminary thoughts in past posts here and here) only mild-mannered proposals about the way WIPO provides assistance to developing countries in implementing intellectual property treaties have gone forward. (On this I differ from the much more positive comments of IP-Watch.) I will argue that, while an alarming number of the most challenging demands of developing countries have been dropped (including anything suggestive of new treaties or major changes to existing treaties), the proposals that remain are important and do have the potential to benefit developing countries by encouraging the implementation of intellectual property norms in a more balanced way. The proposals going forward from the development agenda discussions, unlike the provisions carved out of the Doha round or the 1971 Berne protocol, have primarily to do with advice and assistance provided by WIPO to developing countries in the implementation of their international intellectual property obligations. Such advice and assistance appears to be very much needed. Indeed, it may have been very wise indeed for WIPO member countries to focus on assistance and implementation, rather than on adding to a list of provisions carved out for developing countries that are rarely put into practice.

The WIPO Development Agenda: Canada's Role
I will argue that, in the initial phases of the development agenda discussions, Canada’s allegiance to the group of industrialized nations had loosened somewhat, and that Canada took the position of a middle power, forming a bridge between developed and developing countries. I will then argue that, in the less polarized debates that have followed, Canada, like many developed countries, has encouraged the discussions along, allowing many of the less challenging proposals to pass, but blocking more radical proposals. In particular, as has been noted, Canada appears to have sided at one point with the United States over the contentious issue of ‘access to knowledge’.

Developed countries as a whole have blocked numerous proposals, such as those that called for major institutional changes at WIPO, proposals that emphasized too strongly the potential negative effects of intellectual property protection, proposals that promoted the need for flexibility from intellectual property rules, proposals that fell too far outside WIPO’s focus on intellectual property, and proposals that called for new intellectual property treaties. On less contentious proposals, however, developed countries have followed Canada’s lead to middle ground and have accepted of many of the development agenda proposals.

Canada's Positions: Why?
Canada’s positions can be viewed, first, as part of an international political/economic strategy; second, as part of a domestic strategy that caters to Canadian interest groups; third, as a function of traditional party politics; and finally, as a function of Canadian interests in a well-functioning intellectual property system.

• Canada’s sympathy with developing countries, and that of other Group B countries, can be explained by noting that Canada, as a net intellectual property importer, has little to gain directly from increased intellectual property protection; it is American intellectual property owners who stand to gain the most from such policies.
• From the perspective of domestic politics, Canada’s middle position throughout much of the development agenda talks might have been catering somewhat to the international development community in Canada, who are likely quite interested in the progress of the negotiations, and to other stakeholders sympathetic with many of the developing country positions. Such groups have, over the years, grown more active not only on the domestic stage, but also at WIPO and other international fora. At the same time, the Canadian delegation would have had to keep in mind the very powerful industry groups with interests in strong intellectual property protection who are also quite vocal in Canadian political media
• Traditional party politics may have played a role in the positions taken by the Canadian delegation. Throughout the first phases of the development agenda, in 2004-2005, the centre-left Liberal Party of Canada was in power. The right-of-centre Conservative Party came to power in Canada in February 2006, just as the second less polarized phase of the development agenda discussions began. The Liberal government can therefore take credit for most of the actions taken by the Canadian delegations to create a middle ground between Group B and developing countries, while the Conservative government is ultimately responsible for Canada’s encouragement of many of the developing country proposals, as well as Canada’s initial stance against ‘access to knowledge’.
  
• While it is difficult to pin particular intellectual property policies, which do not have strong left-right political associations, to traditional political party politics, it is possible to see the stances taken by the Canadian delegation as an extension of each political party’s general approach to international relations. The Liberal Party attempted to create an image of Canada as a good international citizen with deep commonalities with many countries, while the Conservative government has been criticized for its apparently more distant stances on both AIDS and aid to developing countries. The Liberal Party has also traditionally attempted to take stances that were more strongly independent of American policy preferences than the Conservative government has. Under the Conservatives, the Canadian delegation took a very low-profile role at the development agenda talks up until the delegation’s stance on ‘access to knowledge’, which was reported to be very much in line with the American position.
• Finally, Canada’s representatives to WIPO are government experts in the field of intellectual property policy in Canada and are therefore aware of the domestic policy directions being taken. Canada is currently in the process of reforming its copyright legislation and is considering how it will make use of flexibilities available under WIPO treaties. Therefore, while Canada’s position may be viewed as being more conciliatory towards developing countries than that of the United States, Canada’s position has generally reflected the interests not only of developing countries, but also of many developed countries, in balanced intellectual property legislation.

WIPO Development Agenda in colour

Here is a more comprehensive examination of the Annex B proposals now going forward as a part of the development agenda at WIPO. I posted a rough outline last Saturday (WIPO development agenda update). In the chart below I have highlighted the items going forward as proposed in green, the items that have been watered down or changed in yellow, and the items that are not going forward in red. You will notice there is a lot of yellow and red.

The proposals in the left column are taken from Annex B in the PCDA/3/2 document. This was the working list of proposals that the delegates started with at the meeting this month. The proposals in the next column are the ones from that list that the delegates have decided to retain according to IP-Watch last week and the Chair's report from the PCDA/3 meeting. (Some were already going forward as a result of the PCDA/3 meeting in February, and others are included in the list of proposals coming out of the PCDA/4 meeting this month.) I have made some notes in the third column.

In addition to the proposals outlined here, the set of less contentious Annex A proposals, also contained in the PCDA/3/2 document, are mainly going ahead. Those have been distilled into 24 proposals in the Chair's report from the PCDA/3 meeting.

CLUSTER A: TECHNICAL ASSISTANCE AND CAPACITY BUILDING
1. To develop and improve national institutional capacity through further development of infrastructure and other facilities with a view to making national intellectual property (IP) institutions more efficient and ensuring a fair balance between IP protection and safeguarding public interest. This technical assistance should be extended to sub-regional and regional organizations dealing with IP	1. To assist Member States to develop and improve national IP institutional capacity through further development of infrastructure and other facilities with a view to making national IP institutions more efficient and promote fair balance between IP protection and the public interest. This technical assistance should also be extended to sub-regional and regional organizations dealing with IP
2. To strengthen national capacity for protection of local creations, innovations and inventions in order to develop national scientific and technological infrastructure	2. To assist Member States to strengthen national capacity for protection of domestic creations, innovations and inventions and to support development of national scientific and technological infrastructure, where appropriate, in accordance with WIPO’s mandate.
3. To implement principles and Guidelines for technical assistance to ensure, inter alia: (a) transparency; (b) that flexibilities existing in international treaties are taken full advantage of; (c) that technical assistance is tailor-made and demand-driven	PCDA/3 1. WIPO technical assistance shall be, inter alia, development-oriented, demand-driven and transparent, taking into account the priorities and the special needs of developing countries, especially LDCs, as well as the different levels of development of Member States and activities should include time frames for completion. In this regard, design, delivery mechanisms and evaluation processes of technical assistance programs should be country specific. 5. WIPO shall display general information on all technical assistance activities on its website, and shall provide, on request from Member States, details of specific activities, with the consent of the Member State(s) and other recipients concerned, for which the activity was implemented. 6. WIPO’s technical assistance staff and consultants shall continue to be neutral and accountable, by paying particular attention to the existing Code of Ethics, and by avoiding potential conflicts of interest. WIPO shall draw up and make widely known to the Member States a roster of consultants for technical assistance available with WIPO.	The part about flexibilities being fully taken advantage of did not go forward
4. To make publicly available all information about design, delivery, cost, financing, beneficiaries and implementation of technical assistance programs as well as the results of internal and external independent evaluation	PCDA/3 5. WIPO shall display general information on all technical assistance activities on its website, and shall provide, on request from Member States, details of specific activities, with the consent of the Member State(s) and other recipients concerned, for which the activity was implemented.	Only general information on technical assistance will be made available on the web site the rest will be made available with consent of Member states and recipients concerned.
5. To establish in the Program and Budget Committee consistent pluriannual programs and plans for cooperation between WIPO and developing countries aiming at strengthening national intellectual property offices, so that they may effectively become an acting element in national development policy. Those programs should be guided, moreover, by the principles and objectives as proposed in document WO/GA/31/11	PCDA/4 1. To assist Member States to develop and improve national IP institutional capacity through further development of infrastructure and other facilities with a view to making national IP institutions more efficient and promote fair balance between IP protection and the public interest. This technical assistance should also be extended to sub-regional and regional organizations dealing with IP
6. To expand the coverage of technical assistance programs to include matters related to the use of competition law and policy to address abuses of intellectual property and practices that unduly restrain trade and the transfer and dissemination of technology	PCDA/3 7. Promote measures that will help countries deal with IP related anti-competitive practices, by providing technical cooperation to developing countries, especially LDCs, at their request, in order to better understand the interface between intellectual property rights and competition policies. PCDA/4 CLUSTER C 4. “To have within WIPO opportunity for exchange of national and regional experiences and information on the links between IP rights and competition policies.”
7. To provide neutral technical assistance of an advisory nature based on actual and expressed needs. The assistance should not discriminate among recipients or issues to be addressed and should not be perceived as being a reward system for supporting certain positions in WIPO negotiations	PCDA/3 6. WIPO’s technical assistance staff and consultants shall continue to be neutral and accountable, by paying particular attention to the existing Code of Ethics, and by avoiding potential conflicts of interest. WIPO shall draw up and make widely known to the Member States a roster of consultants for technical assistance available with WIPO.
8. To ensure that laws and regulations are tailored to meet each country’s level of development and are fully responsive to the specific needs and problems of individual societies. The assistance should correspond to the needs of various stakeholders in developing and least developed countries and not just the intellectual property offices and right holders	PCDA/4 4. WIPO’s legislative assistance shall be, inter alia, development-oriented and demand-driven, taking into account the priorities and the special needs of developing countries, especially LDCs [least-developed countries], as well as the different levels of development of Member States and activities should include time frames for completion.”	The part about corresponding to the needs of various stakeholders did not make it.
9. To separate the norm-setting functions of the WIPO Secretariat from those of technical assistance	NOT CARRIED FORWARD
10. To ensure that legal-technical and technical assistance activities provided to developing and least developed countries are able to implement the pro-development provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), for example, Articles 7, 8, 30, 31 and 40, in addition to subsequent pro-development decisions, such as the Doha Declaration on the TRIPS Agreement and Public Health	PCDA/4 5. “Within the framework of the agreement between WIPO and the WTO, WIPO shall make available advice to developing countries and LDCs, on the implementation and operation of the rights and obligations, and the understanding and use o flexibilities contained in the TRIPS Agreement.” PCDA/4 CLUSTER B 11. [To safeguard in WIPO the development-oriented principles and flexibilities contained in existing agreements, such as the TRIPS Agreement (Manalo 37).]
11. To mainstream development dimension into all of WIPO’s substantive and technical assistance activities and debates, including the way in which the Organization deals with “enforcement” issues	PCDA/4 3. To further mainstream development considerations into WIPO’s substantive and technical assistance activities and debates, in accordance with its mandate. PCDA/3 CLUSTER F 24. To approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns, with a view that “the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations”, in accordance with Article 7 of the TRIPS Agreement.
12. To ensure that technical assistance is demand-driven in the sense that it corresponds to the needs and global political objectives of developing and least developed countries, taking also into account the legitimate interests of various stakeholders and not only those of right holders	PCDA/4 4. WIPO’s legislative assistance shall be, inter alia, development-oriented and demand-driven, taking into account the priorities and the special needs of developing countries, especially LDCs [least-developed countries], as well as the different levels of development of Member States and activities should include time frames for completion.”	The part about the interests of various stakeholders is not going forward
13. To orient technical assistance to ensure that national regimes are set up to implement international obligations in an administratively sustainable way and do not overburden scarce national resources that may be more productively employed in other areas	NOT CARRIED FORWARD
14. To ensure that technical cooperation contributes towards maintaining the social costs of IP protection at a minimum	NOT CARRIED FORWARD
15. To ensure WIPO’s legislative assistance tailors national laws on intellectual property to meet each country’s level of development and is fully responsive to the specific needs and problems of individual societies	PCDA/4 4. WIPO’s legislative assistance shall be, inter alia, development-oriented and demand-driven, taking into account the priorities and the special needs of developing countries, especially LDCs [least-developed countries], as well as the different levels of development of Member States and activities should include time frames for completion.”
16. To promote model approaches on how to implement the relevant provisions on anti-competitive practices of the TRIPS Agreement	NOT CARRIED FORWARD
CLUSTER B: NORM-SETTING, FLEXIBILITIES, PUBLIC POLICY AND PUBLIC DOMAIN
17. To request WIPO to examine the flexibilities under the TRIPS Agreement and Doha Summit decisions with a view to giving practical advice to developing and least developed countries on how to enable them gain access to essential medicines and food, and also to elaborate a mechanism to facilitate access to knowledge and technology for developing and least developed countries	PCDA/4 5. “Within the framework of the agreement between WIPO and the WTO, WIPO shall make available advice to developing countries and LDCs, on the implementation and operation of the rights and obligations, and the understanding and use o flexibilities contained in the TRIPS Agreement.” PCDA/4 CLUSTER B 11. [To safeguard in WIPO the development-oriented principles and flexibilities contained in existing agreements, such as the TRIPS Agreement (Manalo 37).]
18. To request WIPO to adopt an internationally binding instrument on the protection of genetic resources, traditional knowledge and folklore in the nearest future	2. To urge the IGC to accelerate the process on the protection of genetic resources, traditional knowledge and folklore, without prejudice to any outcome, including the possible development of an international instrument or instruments.	proposal to ‘adopt an instrument’ has become ‘accelerate the process’ ‘without prejudice to any outcome’
19. To elaborate a mechanism to facilitate access to knowledge and technology for developing and least developed countries	3. To discuss possible new initiatives and strengthen existing mechanisms within WIPO to facilitate [access to knowledge] and technology for developing countries and LDCs and to foster creativity and innovation within WIPO’s mandate.
20. To formulate and adopt measures designed to improve participation by civil society and other stakeholders in WIPO activities, relevant to their respective domains and interests	PCDA/4 10. Norm-setting activities shall: … - be a participatory process, which takes into consideration the interests and priorities of all WIPO Member States and the viewpoints of other stakeholders, including accredited inter-governmental organizations and non-governmental organizations; … PCDA/3 CLUSTER E 23. To enhance measures that ensure wide participation of civil society at large in WIPO activities in accordance with its criteria regarding NGO acceptance and accreditation, keeping the issue under review.
21. Best Practices for Economic Growth: Compile and disseminate the “best practices” of Member States related to fostering the development of creative industries and attracting foreign investment and technologies based, at least in part, on the baseline national surveys for economic growth, which are discussed more fully below under cluster D	PCDA/4 8. [Best Practices for Economic Growth: Compile and disseminate the “best practices” of Member States related to fostering the development of creative industries and attracting foreign investment and technologies based, at least in part, on the baseline national surveys for economic growth, which are discussed more fully below under cluster D]
22. Increasing understanding of the adverse effect of counterfeiting and piracy on economic development: Through the WIPO Advisory Committee on Enforcement (ACE), conduct analyses of the relationship between high rates of counterfeiting and intellectual property piracy and technology transfer, foreign direct investment and economic growth	PCDA/4 9. [Increasing understanding of the adverse effect of counterfeiting and piracy on economic development: Through the WIPO Advisory Committee on Enforcement (ACE), conduct analyses of the relationship between high rates of counterfeiting and intellectual property piracy and technology transfer, foreign direct investment and economic growth]
23. Draw up proposals and models for the protection and identification of, and access to, the contents of the public domain	PCDA/4 4. To promote norm-setting activities related to IP that support a robust public domain in WIPO’s Member States, including the possibility of preparing guidelines which could assist interested Member States in identifying subject matters that have fallen into the public domain within their respective jurisdictions.	promoting protection of and access to the public domain has been dropped; the focus is now on identifying items in the public domain
24. To establish in WIPO an area of analysis and discussion of incentives promoting creative activity, innovation and technology transfer, in addition to the intellectual property system, and within the intellectual property system, for example emerging exploitation models. This could be achieved through either of two mechanisms: (i) An electronic forum maintained by WIPO for the exchange of information and opinions. It could have a limited duration (e.g. one year), after which proposals and discussions could be summarized in a document. If there is interest and critical mass, we would analyze if and how to proceed. Discussions in the forum could be organized under the following sections: Tools within the intellectual property system (e.g. utility models, systems of free and open licenses and creative commons), and those complementary to the intellectual property system (e.g. subsidies, Treaty on Access to Knowledge, Treaty on Medical R&D). (ii) To include this issue as a permanent item in the agendas of the WIPO Committees.	NOT CARRIED FORWARD
25. To adopt development-friendly Principles and Guidelines for norm-setting activities	NOT CARRIED FORWARD
26. To undertake debates on the feasibility and desirability of new, expanded or modified rules, prior to engaging in norm-setting activities, especially by means of public hearings	PCDA/4 5. WIPO shall conduct informal, open and balanced consultations, as appropriate, prior to any new norm-setting activities, through a member-driven process, promoting the participation of experts from Member States, particularly developing countries and LDCs.
27. To pursue a balanced and comprehensive approach to norm-setting, emphasizing the design and negotiation of rules and standards that are guided by and fully address the development objectives and concerns of developing and least developed countries and of the international community	PCDA/4 6. WIPO’s norm-setting activities should be supportive of all [internationally agreed] development goals [,] [agreed] within the UN system, including those contained in the Millennium Declaration.
28. To ensure that norm-setting activities are fully compatible with and actively support other international instruments that reflect and advance development objectives, in particular Human Rights international instruments	PCDA/4 6. WIPO’s norm-setting activities should be supportive of all [internationally agreed] development goals [,] [agreed] within the UN system, including those contained in the Millennium Declaration.
29. To include in treaties and norms provisions on, inter alia: (a) objectives and principles; (b) safeguard of national implementation of intellectual property rules; (c) against anti-competitive practices and abuse of monopoly rights; (d) promotion of transfer of technology; (e) longer compliance periods; (f) flexibilities and “policy space” for the pursuit of public policies; (g) exceptions and limitations	[The Secretariat should address in its [working documents for norm-setting activities] [background] documents, as appropriate and as directed by Member Sates, issues such as: a) [potential implementation issues] [safeguarding national implementation of intellectual property rules] [b) mechanisms to prevent anti-competitive practices c) promotion of transfer of technology) d) potential flexibilities, exceptions and limitations for Member States and e) the possibility of additional special provisions for developing countries and LDCs without prejudice to the outcome of Member States considerations	items will be considered in working docs rather than included in treaties and norms; several items have been left behind altogether
30. To include in all treaties and norms operative and substantial special and differential treatment provisions for developing and least developed countries	NOT CARRIED FORWARD
31. To ensure that norm-setting activities provide developing countries with policy space commensurate with their national development needs and requirements	NOT CARRIED FORWARD
32. To ensure that norm-setting activities help identify and maintain a robust public domain in all WIPO’s Member States	PCDA/4 4. To promote norm-setting activities related to IP that support a robust public domain in WIPO’s Member States, including the possibility of preparing guidelines which could assist interested Member States in identifying subject matters that have fallen into the public domain within their respective jurisdictions.	‘maintaining’ a robust public domain has been dropped
33. To examine non-intellectual property type and/or non-exclusionary systems for fostering, creativity, innovation and transfer of technology (e.g., free software development and creative commons models)	PCDA/4 7. To consider how to better promote [creative] pro-competitive IP licensing practices, [including emerging licensing options,] particularly with a view to fostering creativity, innovation and the transfer and dissemination of technology to interested countries, in particular developing countries and LDCs.
34. To ensure that new subjects and areas for norm-setting are identified on the basis of clear defined principles and guidelines and on assessment of their development impact	NOT CARRIED FORWARD PCDA/4 5. WIPO shall conduct informal, open and balanced consultations, as appropriate, prior to any new norm-setting activities, through a member-driven process, promoting the participation of experts from Member States, particularly developing countries and LDCs.	The new item does not include anything about prior assessment of development impact of new norms
35. To establish a Treaty on Access to Knowledge and Technology	NOT CARRIED FORWARD 3. To discuss possible new initiatives and strengthen existing mechanisms within WIPO to facilitate [access to knowledge] and technology for developing countries and LDCs and to foster creativity and innovation within WIPO’s mandate.
36. To develop an international framework to deal with issues of substantive law relating to anti-competitive licensing practices, primarily those that adversely affect the transfer and dissemination of technology and restrain trade	PCDA/3 CLUSTER A 7. Promote measures that will help countries deal with IP related anti-competitive practices, by providing technical cooperation to developing countries, especially LDCs, at their request, in order to better understand the interface between intellectual property rights and competition policies. PCDA/4 CLUSTER C 4. “To have within WIPO opportunity for exchange of national and regional experiences and information on the links between IP rights and competition policies.”	The proposal of an ‘international framework’ has been dropped
37. To protect and promote in all negotiations the development oriented principles and flexibilities contained in existing Agreements, such as the TRIPS Agreement	NOT CARRIED FORWARD
38. To promote models based on open collaborative projects to develop public goods, as exemplified by the Human Genome Project and Open Source Software	PCDA/4 10. [To exchange experiences on open collaborative projects for the development of public goods such as the Human Genome Project and Open Source Software (Manalo 38).]	‘promote models’ became ‘exchange experiences’
39. To set objectives and issues to be addressed in each proposed treaty or norm based on the views of all stakeholders, with special emphasis on participation by public interest groups	NOT CARRIED FORWARD
CLUSTER C: TECHNOLOGY TRANSFER, INFORMATION AND COMMUNICATION TECHNOLOGIES (ICT) AND ACCESS TO KNOWLEDGE
17. To develop criteria and methodology to select essential technologies, monitor and facilitate the transfer and the diffusion of such technologies in accessible and affordable cost to developing countries and LDCs	NOT CARRIED FORWARD
18. To contribute effectively to individual nation’s self-reliance, including through relaxation of patent rules in the area of technology by facilitating access to foreign patented information on technology and technical resources	PCDA/4 3. “To undertake initiatives agreed by member states which contribute to transfer of technology to developing countries, such as requesting WIPO to facilitate better access to publicly available patent information,” and	‘relaxation of patent rules’ part dropped and caveat ‘agreed by member states’ added
19. To create a new body for formulating, coordinating and assessing all transfer of technology policies and strategies	NOT CARRIED FORWARD
20. To develop and maintain, in collaboration with other intergovernmental organizations, a list of essential technologies, know-how, processes and methods that are necessary to meet the basic development needs of African countries aimed at protecting the environment, life, health of human beings, animals and plants, promoting education and improving food security	NOT CARRIED FORWARD
21. To work on any initiative intended to facilitate the implementation of technology-related provisions of Multilateral Environmental Agreements (MEAs), so as to ensure that countries where biological, traditional or other environmental resources originate from, participate in the process of research and development	NOT CARRIED FORWARD
22. To adopt development-friendly principles and guidelines on transfer of technology	NOT CARRIED FORWARD PCDA/4 1. “To include discussions on IP-related technology transfer issues within the mandate of an appropriate WIPO body,”
23. To adopt specific measures that ensure transfer of technology to developing countries;	NOT CARRIED FORWARD PCDA/4 1. “To include discussions on IP-related technology transfer issues within the mandate of an appropriate WIPO body,”
24. To incorporate in intellectual property treaties and norms relevant provisions dealing with anti-competitive behavior or abuse of monopoly rights by rights holders	NOT CARRIED FORWARD
25. To devise a mechanism whereby countries affected by anti-competitive practices request Developed Countries authorities to undertake enforcement actions against firms headquartered or located in their jurisdictions	NOT CARRIED FORWARD
26. To establish a special fee on applications through the Patent Cooperation Treaty, the revenues of which would be earmarked for the promotion of research and development activities in the developing and least developed countries	NOT CARRIED FORWARD
27. To establish a WIPO Standing Committee on IP and Technology Transfer and a dedicated Program on these issues, including related Competition Policies	PCDA/4 1. “To include discussions on IP-related technology transfer issues within the mandate of an appropriate WIPO body,”	will be an existing body not a new body
28. To adopt commitments like those contained in Article 66.2 of the TRIPS Agreement, expanded to benefit all developing countries	NOT CARRIED FORWARD [TRIPS article 66.2: “Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base.”]
29. To establish an intermediary conduit to reduce the asymmetric information problem in private transactions between technology buyers and sellers, for knowledge about successful technology-acquisition programs that have been undertaken by national and sub-national governments in the past	NOT CARRIED FORWARD
30. To negotiate a multilateral agreement where signatories would place into the public domain, or find other means of sharing at modest cost, the results of largely publicly funded research. The objective would be to set out a mechanism for increasing the international flow of technical information, especially to developing countries, through expansion of the public domain in scientific and technological information, safeguarding, in particular, the public nature of information that is publicly developed and funded without unduly restricting private rights in commercial technologies	NOT CARRIED FORWARD
CLUSTER D: ASSESSMENT, EVALUATION AND IMPACT STUDIES
17. To establish an independent development impact assessment with respect to technical assistance, technology transfer and norm-setting on developing and least developed countries (LDCs)	PCDA/4 3. To strengthen WIPO’s capacity to perform objective assessments of the impact of the organization’s activities on development.	‘independent’ part lost
18. Baseline National Surveys for Economic Growth: Provide assistance through the WIPO Secretariat to Member States requesting help to conduct base-line national economic surveys and make the results of such surveys available to other Member States	PCDA/4 CLUSTER B 8. [Best Practices for Economic Growth: Compile and disseminate the “best practices” of Member States related to fostering the development of creative industries and attracting foreign investment and technologies based, at least in part, on the baseline national surveys for economic growth, which are discussed more fully below under cluster D]
19. Measuring the contribution of national creative and innovative industries: Expand the successful WIPO Guide for Surveying the Economic Contribution of the Copyright-based Industries to include the patent-based innovative industries	NOT CARRIED FORWARD
20. Conducting Global economic surveys of the creative and innovative sectors: Explore the feasibility of WIPO conducting its own economic surveys on a regular basis to support the creative and innovative sectors with useful data	NOT CARRIED FORWARD
21. Collecting Data on Global IPR Piracy and Counterfeiting: The WIPO Secretariat should assist in the collection of data on global piracy and counterfeiting rates with a view toward making the information widely available	PCDA/4 CLUSTER B 9. [Increasing understanding of the adverse effect of counterfeiting and piracy on economic development: Through the WIPO Advisory Committee on Enforcement (ACE), conduct analyses of the relationship between high rates of counterfeiting and intellectual property piracy and technology transfer, foreign direct investment and economic growth]
22. Study to evaluate the appropriate levels of intellectual property, to identify the links between IP and development. For example, a study of a limited, but representative, number of countries, with participation on a voluntary basis, in specific areas of IP, such as patents, exceptions and limitations and institutional capacity to administrate the IP system, including costs to government, as well as to individuals (cost in GDP)	PCDA/4 2. Upon request and as directed by Member States, WIPO may conduct studies on the protection of intellectual property, to identify the possible links and impacts between IP and development.
23. To establish, through a member-driven process, an independent Evaluation and Research Office (WERO) that would be responsible for, inter alia, evaluation of all WIPO’s programs and activities and carrying out of “Development Impact Assessments” in norm-setting activities, and technical cooperation	NOT CARRIED FORWARD
24. To undertake independent, evidence-based “Development Impact Assessments” with respect to norm-setting activities that could be carried out by the proposed WERO	NOT CARRIED FORWARD
25. To compile empirical evidence and carry out cost-benefit analysis that consider, inter alia, alternatives within and outside the IP system. These endeavors should form the basis of norm-setting activities that attain the objectives pursued with less monopoly of knowledge	NOT CARRIED FORWARD
26. To establish a mechanism, overseen by Member States, to ensure a continuous objective evaluation of the actual impact and costs of treaties that have been adopted, especially for developing countries	PCDA/4 3. To strengthen WIPO’s capacity to perform objective assessments of the impact of the organization’s activities on development.
CLUSTER E: INSTITUTIONAL MATTERS INCLUDING MANDATE AND GOVERNANCE
17. Proposal to reinvigorate the PCIPD	NOT CARRIED FORWARD
18. WIPO Partnership Office: Establish within the WIPO International Bureau a Partnership Office staffed by WIPO personnel deployed for the purpose of evaluating requests by Member States for assistance related to IPR and development and actively seeking to find partners to fund and execute such projects	PCDA/4 1. “To consider how to improve WIPO’s role in finding partners to fund and execute projects for IP-related assistance in a transparent and member-driven process and without prejudice to ongoing WIPO activities,” PCDA/3 CLUSTER A 9. Request WIPO to create, in coordination with Member States, a database to match specific IP-related development needs with available resources, thereby expanding the scope of its technical assistance programs, aimed at bridging the digital divide.	The proposal is now for a database rather than an entire office; additional ways of matching partners will be considered as well.
19. To amend WIPO Convention, bringing it in line with WIPO’s mandate as an UN﷓specialized agency	NOT CARRIED FORWARD
20. To maintain the mandate of WIPO’s Advisory Committee on Enforcement within the limits of a forum for exchange of information on national experience, excluding norm﷓setting activities. The ACE agenda of discussion should also tackle how to best ensure the implementation of all TRIPS-related provisions, including those that provide for exceptions and limitations to the rights conferred	NOT CARRIED FORWARD
21. To reinforce WIPO’s member-driven nature as a United Nation system organization. That would include, inter alia, that formal and informal meetings or consultations held between Members or organized by the International Bureau upon request of the Member States should be held in Geneva, in an open and transparent manner that involves all interested Member States	PCDA/4 2. “In accordance with WIPO’s member-driven nature as a United Nations Specialised Agency, formal and informal meetings or consultations relating to norm-setting activities in WIPO; organised by the International Bureau, upon request of member states, should be held primarily in Geneva, in a manner open and transparent to all members. Where such meetings are to take place outside of Geneva, member states shall be informed through official channels, well in advance, and consulted on the draft agenda and program.”
CLUSTER F: OTHER ISSUES