WIPO PCDA2: Escalation on day four: What is the future of the Development Agenda?

The Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA/2) took place this week at the WIPO in Geneva, Switzerland. As in February [1, 2, 3, 4, 5, 6] and the year before, FSFE was at the meeting as part of its WIPO activities.

Monday

The plenary started late on Monday as the Paraguayan chair Rigoberto Gauto Vielman took several delegations into an informal session, hoping this would allow coming to a consensus on approach to come to a consensus. And while procedural discussions may seem dull at times, they are very often central: In this case, the chair wished to proceed with what people here also refer to as “basket approach,” sorting the proposals along the lines of consensus, emerging consensus and no consensus in sight. While this may sound logical and constructive, it boils down to a veto system, in which all countries can simply choose to shoot down any proposal they dislike.

Unsurprisingly, the Friends of Development countries were not willing to go along with this approach. After all, it was their initiative that brought about these meetings, and so far none of the industrialised countries had shown much interest in substantial work on the issues.

So when the plenary started late on Monday, the chair only wanted to deal with the formalities, and then bring the countries back to the informal session. This was supported by the industrialised countries, but the Friends of Development were not so happy about that idea. There are no records of informal sessions, and there are no observers: Word on the corridors had it that the industrialised countries were being extremely aggressive behind closed doors, so the Friends of Development preferred the larger forum with records and observers.

So after lunch, the plenary convened and started discussing the different proposals in clusters that had been presented by the chair for the basis of discussion:

     CLUSTER A: Technical Assistance and Capacity Building CLUSTER B: Norm-setting, Flexibilities, Public Policy and Public Domain CLUSTER C: Technology Transfer, Information and Communication Technology (ICT) and Access to Knowledge CLUSTER D: Assessments, Evaluation, and Impact Studies CLUSTER E: Institutional Matters including Mandate and Governance CLUSTER F: Other Issues 

Getting starting on this then took the entire afternoon of Monday.

Tuesday and Wednesday

Because of the many informal discussions, the plenary started comparatively late on Tuesday and Wednesday. Because the substance is so highly controversial, the chair did not forsee and possibility for observer organisations to speak this week on Tuesday. But everyone was surprised by how constructive, forward-pointing and fast the discussion evolved. This may also be due to the fact that WTO negotiations are running in parallel, and people here are trying to avoid stepping on any toes at WIPO that might jeopardise those negotiations.

So the discussion of the clusters was finished Wednesday before lunch, which opened the possibility for observer NGOs to speak on Wednesday after lunch — and FSFE seized that opportunity along with many others. Here is the statement we gave:

     STATEMENT BY THE FREE SOFTWARE FOUNDATION EUROPE (FSFE) TO THE SECOND SESSION OF THE PROVISIONAL COMMITTEE ON PROPOSALS RELATED TO A WIPO DEVELOPMENT AGENDA (Geneva, 26-30 June 2006) Mr. Chairman, the Free Software Foundation Europe (FSFE) has various comments to make in relation to the document PCDA/1/6 Prov. 2 and the discussions that followed. Regarding item B22, the FSFE is surprised to see Free Software and Creative Commons described as activities outside the mandate and scope of copyright. Additionally, we understood the distinguished delegate of Mexico to have a similar understanding. As also explained in our ''Free Software Essentials Reference'' paper available on the table outside, the vast majority of Free Software is using copyright licensing for its software. Similarly, Creative Commons consists of a set of modular copyright licenses for artistic works. We assume that it is not the intention of WIPO to declare copyright in general outside its scope. So our recommendation is to rephrase point B22 along the lines of intensifying activities for all uses of the copyright system, including Free Software and Creative Commons. Regarding items A18 and 25 as well as C13,15,16 and 18, the Free Software Foundation Europe would like to direct the attention of the assembly to the difficulties of the European Commission in trying to reestablish a competitive market in Europe vis-a-vis Microsoft. This case provides an excellent demonstration of the difficulties experienced by industrialised countries to limit monopoly abuse, and why publicly available technical specifications are not sufficient to maintain an Open Standard. This is increasingly being understood by legislators in several countries, such as Denmark. In its motion B103, the Danish parliament defines an Open Standard along three criteria. Any such standard should be a) well documented with its full specification publically available, b) freely implementable without economic, political or legal limitations on implementation and use, and c) standardized and maintained in an open forum (a so-called standards organisation) through an open process. We also encourage delegates to take a look at the reasoning of the motion, which makes quite clear that Open Standards are essential to stop the spread of software dependencies from one group of users or organisation to another. As the distinguished delegate of India pointed out in his statement, Free Software is an important element of capacity building, it is the best choice to give independence to governments, and it helps the ''common man and woman.'' We see this point as relevant in particular to items A2, 6, 7, 11, 12, 14 and 15, also B9, 11, 27 and 28 and C1, 3, 10, 11, 12. Mr. Chairman, Free Software is relevant to WIPO not only in terms of being licensed under copyright, it is also relevant in so far as WIPO is planning to make massive use of software for many of its Development Agenda activities, especially A11, 12, 14, B9 and D11. For all these items, should the general assembly agree to move forward with them, Free Software and Open Standards will be essential building blocks for WIPO in its development related activities. It is indeed our understanding that by spurring this debate, the Development Agenda can generally help WIPO to adapt to future challenges. It is increasingly understood that independence of political organisations and structures from the corporate interest of single vendors is a critical issue for democracy. Several political bodies around the world have already adapted their procurement policies in ways that will secure their independence and political mandate by demanding control over the software they depend on for their daily work. FSFE believes that WIPO as an organisation faces similar issues in all its activities, and should take them into consideration in due time. As a closing remark let me add that FSFE also considers items E7 and 8 to be central in WIPOs quest for more transparency, democracy and all-stakeholder involvement. We therefore encourage all delegations to offer their support to these points. Thank you, Mr. Chairman. Statement by Mr. Georg C.F. Greve  Free Software Foundation Europe, President UN World Summit on the Information Society (WSIS), Civil Society Patents, Copyrights, Trademarks (PCT) Working Group, Co-Coordinator First phase Civil Society representative, German Governmental Delegation 

If you want to link to it, its permanent URL is http://fsfeurope.org/projects/wipo/statement-20060628.en.html.

This concluded the Wednesday, and the chair was then going into seclusion with the goal of drafting a basis for consensus of the meeting, not without some strong comments by the Friends of Development that they worry about the process, and that silence to certain items does not constitute support.

Thursday

Thursday started late, and with a massive uproar by the Friends of Development when they saw the proposal of the chair, which was based on the aforementioned “basket approach.” Since the chair avoided looking at them, Brazil had to bang their shield on the table to grab attention — and declare that this is not what they agreed to in the informal negotiations. Argentina, Iran, South Africa, Cuba, Bolivia strongly shared the feeling of having been misled.

Switzerland, which coordinates the industrialised countries, Austria for the European Union, and Kirgistan supported the draft of the chair, and Mexico asked for more informal negotiations. Brazil did not immediately agree to this because they felt that they could not have confidence in what is agreed to informally, as it had been ignored already.

After some calls for regional coordination group meetings, the meeting was finally adjourned. In case you wonder why things escalated so quickly and so massively, here is a chart that I made matching the items supported by the United States and the European Union with the proposal of the chair.

White lines are items that are either supported by United States and/or European Union, but are not in the chairs draft, grey items are ones that made it into the chairs draft with support from either the United States or European Union, and dark grey items are the ones that did not have support from either of the two:

    Cluster US Support Draft of the Chair EU Support
    A 1 1 1
    2
    3
    4 4 4
    5 5 5
    6 6 6
    7 7 7
    8 8 8
    9 9 9
    10 10 10
    11 11 11
    12 12 12
    14 14 14
    15
    17 17 17
    19 19
    21 21
    22 22 22
    23 23 23
    24 24 24
    25 25 25
    B 5 5
    6 6
    8 8
    11
    12 12 12
    13 13 13
    15 15
    16 16 16
    22
    C 6 6
    7
    8 8 8
    9 9
    11 11 11
    14 14
    15
    D 1 1
    3 3
    4 4
    5
    6 6
    7
    8 8
    9 9
    14 14 14
    15 15 15
    E 1 1
    2 2 2
    3 3
    4 4
    5 5 5
    7 7
    8 8
    F 2
    3 3

This looks rather clear, in a sad way. The basket approach has done exactly what the Friends of Development feared it would: By exclusion it allowed the United States and European Union to unilaterally determine the Development Agenda items.

Only plus for the EU: They supported B22, which is about more intensive studies on Free Software and Creative Commons. But then it did not make it in there, because the United States did not support it, and Mexico actively opposed it.

So now the big question is: How will things go from here?

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