Provisional Committee on a Developent Agenda for WIPO, Day Three

The third day of the Provisional Committee on a Development Agenda (PCDA) for WIPO ended right in the middle of the Brazilian statement on the US proposal. After Brazil had already spent 25 minutes of detailed disassembling, the session was closed for the day. But first things first.

As day two ended with the African Group proposal coming up, day three started with substantive discussion of the proposal. The atmosphere was actually moderately positive and constructive, although not very detail-oriented.

So after some discussion and a lunch-break, it was time for the Colombian proposal. This proposal was the odd fit in the group of all proposals, as it mainly dealt with WIPO providing better online access to patent databases, in order to “keep patent quality high.” So its connection to the Development Agenda was much more indirect than for any other proposal.

How much this proposal would really change for developing countries can be considered with some scepticism. Especially when considering that patent review does not work very well in industrialised countries with all the information available, and hundreds of evaluators at their service. Patents are often written to be as broad and obfuscated as possible in order to provide the most far-reaching scope, with some interpretation room in court to maybe extend it even furter.

The result is that no automated system can compare two proposals in a reliable fashion, and that humans are simply overwhelmed by the sheer number. So even if we neglected connectivity issues, standardisation problems and huge costs of database maintenance: How much would developing countries really win from such a database?

It seems more likely they would spend years and lots of resources trying to build it while they could have used these resources for other, more sustainable activities. But since all countries at WIPO are always in favor “more effective online tools” to “facilitate access to IPR information” regardless of whether it is feasible or useful, the discussion was rather consensual and quick.

Naturally, similar questions arise for the US proposal, which in substance seems to have moved from “a Webpage” to “a really cool Webpage”.

Anyone who has ever set up or maintained databases is going to cringe at the idea of setting up a global “WIPO Partnership Database” that will involve all sectors, such as government, academia, private sector, NGOs and so on to bring together “those that have ‘IP’” and “those that need ‘IP’”. Indeed, for most countries TCP/IP is going to be the first fundamental problem: We are apparently talking about an effort in a size category not totally unlike Google. How are they going to have sufficiently broad access to that database? How many local mirrors will be needed to ensure access in case of bad connection?

Overall, the US proposal is centered on a massive technological project that would bring significant cost for questionable benefit with many ways in which it is likely to fail. That does not sound too good.

While there are some other parts of the US proposal that may be useful, it is mainly implementation oriented, it only seeks to increase the effectiveness of WIPO activities. In other words: it makes the silent assumption that both norm-setting and analysis at WIPO are as they should be, that no improvement is possible or necessary. So WIPO should essentially continue to mainly serve the interests of the US and EU rights-holding industries.

This is obviously not very popular with the Friends of Development, which seek to give WIPO both hind- and foresight for its activities, both in the practical and norm-setting sense, such that WIPO would consider the impact of its activity on all of humankind.

And that is why Brazil has spent the last 25 minutes of today taking apart the US proposal piece by piece, and may continue doing so for another 20 minutes tomorrow.

Special notice

Besides these mainstream activities, two things seemed noteworthy today. One is a followup on Mexicos statement on day two (see yesterday’s blog entry): It seems Mexico did not like being told that people were confused about their apparent change of mind on where Free Software and such issues should be discussed and they clarified that “they meant they wanted WIPO to go to WSIS to discuss it there.”

As you know, I was in the German governmental delegation during the first phase of the WSIS, and was such able to go to the closed working groups in which Free Software and limited monopolies like Copyright, Patents and Trademarks were discussed. I also saw and heard Mexicos statements in these working groups, which usually sounded much like those of the United States.

And I witnessed how the WIPO representative was sent outside the room after being able to deliver a short introductory statement. So WIPO was not part of that discussion at the first phase of the WSIS where most of the Free Software language was drafted. I’m sure Mexico could have asked to involve them on these subjects, but cannot recall them doing so, and I am sure I would remember.

The other interesting occurence today is only vaguely related to the WIPO in so far as it concerns use of Copyright and Patents to form and abuse a monopoly to leverage it into other market areas and prevent competition on a fundamental level: I’m talking about the Microsoft antitrust case.

This morning, a conglomerate of Corel, IBM, Linspire, Nokia, Opera, Oracle, RealNetworks, Red Hat and Sun Microsystems filed a complaint with the European commission about Microsofts behaviour in the antitrust case and asked that the antitrust measures also be applied to other areas. That sounds like a very good idea.

More information

If you want to read more about what happened at the PCDA at WIPO so far, there are various sources. Of course you should have a look at Karstens blog. The EFF are again trying to provide more complete protocols, so you can now read the summary of day one. There is also another article at IP-Watch.org that you could check out.

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