Karsten on Free Software

This morning is set to continue with ten or so statements from NGOs. Yesterday, the NGO contributions carried few surprises, as by now everyone knows which ones are permanently suffering from high blood pressure, and which ones don’t.

Who proved outstanding in this respect was the intervention from Eric Noehrenberg, the representative of the International Federation of Pharmaceutical Manufacturers and Associations. His line was that pharma companies could do so much good in the world, if developing countries would just entrust themselves to their mercy instead of stupidly insisting on fostering their domestic production of vital medicines.

While this line is nothing new, his delivery is always impressive, with rolling eyes, waving arms and all the elements of drama. Together with his revolting stance, it reinvigorates one’s spirits after a drawn-out afternoon.

On other fronts, the EU and the African group are holding meetings at the moment. Let’s wait and see what they are cooking up. Considering yesterday evening’s proposal by the EU, this might be too soft and squishy to stand up in the debate as it is now.

After the meeting had started an hour later than usual, the NGOs that hadn’t been able to speak yesterday (as the Chairman cut off the round of NGO statements after an overly long and off-topic contribution from the International Chamber of Commerce) got their turn. There were not too many surprises, except for some sharp reactions to one of the more clear public interest NGO statements.

This took about an hour. Then, the meeting was adjourned, and the Chairman went into informal (read: secret) horse-trading sessions with the different groups. These continued over a very extended lunchtime. The session is supposed to resume at about half past four, when delegates will try to agree on something to send to the General Assembly.

Unfortunately, I will not be able to be there personally, as I have to catch the train to Zurich. But I will contact a number of people to find out and be able to tell you what is going to happen.

The indications I have are not pointing towards anything remotely resembling consensus. While the British came out with something that sounded like a compromise yesterday, and the African Group formulated something compromisey this morning, in reality there has been very little movement.

One of the British delegates expressed that he did not understand why the Friends of Development so desperately wanted to keep negotiating the question of the Development Agenda on a far more important forum than the half-dead PCIPD, where the last effective decision was made in 1999. This destroyed my impression that at last the EU as a whole had understood what the idea of a Development agenda is about.

Something the African Group suggested as a draft report for the meeting was the weakest document I’ve seen in a while. It does not even make reference to a continuation of the IIM process, much less of a Treaty on Access to Knowledge. Unfortunately, they used about one and a half pages for this nothingness; this means one can’t even use the back of the paper for notes.

From the Friends of Development side, there was quite some disappointment at the British paper. The items it suggested for “early harvest”, i.e. the ones where consensus might be easily reached, basically were those from the Bahrain proposal, concerning technical assistance as well as principles and guidelines. But these, in the mind of the Friends, really are issues which should be discussed when it has become clear what WIPO’s stance on Development will actually be, as they are merely going to implement that stance.

One rightsholder NGO delegate had an interesting Freudian slip (at least it came through this way in the translation): “That we are in favor of intellectual property does not mean that we are not opposed to development.”

Catching my train now. I hope to fill you in on the meeting’s outcome later.

By the way: If you ever get to stay at the budget City Hostel Geneva and need to get a bit of work done: There’s half-decent wireless connectivity if you sit on the top step of the stairway leading down to the basement.

I missed an explosive afternoon. Thanks to Georg Greve, who took very thorough notes of the meetings, I’m nevertheless able to report to you. Man, whish I would’ve been there! Here goes.

While I was guessing on a last-minute compromise, with the US giving in, it seems that their usual lobbying groups (such as the Motion Picture Association of America (MPAA), a well-known copyright bully, and the countless pharma groups) have been restating their whishes to the US delegation; the US representative remains entirely obstinate.

From what has leaked out of the informal meetings held during lunchtime, which lasted two hours longer than expected, was that the US delegate went ballistic. When the regular meeting was finally resumed at 17:30, the US stuck to their fixation to burying the development agenda in the meaningless PCIPD. They even had the chuzpah of calling their suggestion for a report, which just restated said fixation, “the only unbiased” one.

The Chairman, after the horse-trading sessions, reported that there were only very few delegations opposed to more IIMs. Guess who they are. Substracting those, there is broad consensus that the IIMs are the right forum for such an overarching debate.

Needless to say, heated debate ensued. The EU, which previously had agreed to continuing the IIM process because they reckon it won’t make a difference anyway, retracted from that position and lapsed back into PCIPD-mania.

This prompted the Indian statement: “We are being asked to switch from a horse to a mule in mid-stream.” The African Group, represented by Morocco, took it unto itself to once again bring up the demand for more IIMs.

For some reason, the US was not exactly enticed by the Argentinian suggestion of explicitely naming in the report the only two delegations refusing consensus on the IIM continuation: The US and Japan. This name-and-shame strategy would at least make it clear who is responsible for the fact that the past IIMs have mainly been wasted on procedural discussions.

If the US strategy was to draw the process out interminably by provoking endless procedural discussions, they certainly succeeded. They want the idea of a Development Agenda dead, gone and forgotten. No wonder, since the are the ones making the biggest profit from the status quo. (This somewhat reminds me of the Microsoft strategy in the EU antitrust case. Small wonder. Microsoft is probably footing the bill for the US delegation’s drinks after the meeting.

Now there will be only a factual report, containing what delegations said. Since the General Assembly will not only take place in the same room at the end of September, but will also be made up of the same people, the embittered fighting is sure to go on there. So that is where the question if there are to be more IIMs will be discussed.

Even though I have very few illusions about international policymaking left, I am disappointed by this outcome. The fact that one country – and always the same one, at that – is able to keep profiting from the status quo while people are dying as a consequence of their position – think medicines that are too expensive, think of people starving because they suffer from lack of education to such a degree that they cannot improve their economic situation – really angers me.

But then, this is not the last time these issues are discussed. This will not go away, we will not go away.

Today, the more conflictive issues might get to be discussed. A list of all items has unofficially become available (pages 1 and 2). (I’ve had a few qualms about posting these – so much for the spirit of transparency at WIPO.) Before the start of the regular session at 10 am, there are closed group meetings by the EU, Group B (industrialised countries) and the African Group.

The EU, unsurprisingly enough, still has troubles arriving at a common position that is in any way substantial. As for likely outcomes of this meeting, it appears that the recommendation to the General Assembly in late September will be either to totally remodel the PCIPD (the solution favoured by rich countries) or a continuation of the IIM process, meaning three of four meetings like this one in 2006. The latter seems much more likely, as the only ones seriously opposed are the United States. (Yes, I know, this is not a dramatic turn.)

Just as I’m writing this, I’m handed the latest proposal by the United States. It must have taken them a full five minutes to write it up. It has all the air of a defiant child about it, as it is a reaction to the rather bold paper handed in by Brasil yesterday, where they basically suggest that the adoption of the Development Agenda should be recommended to the General Assembly.

The US paper is blatantly unimaginative: Hand to the General Assembly the reports of the three past IIMs (including this one), and the push the Development Agenda issue off into the PCIPD. Falling about three months behind the current state of the discussion, the core sentence is:

“The General Assembly reaffirms that the mandate of the PCIPD is sufficiently broad to consider fully the proposals made.” The US paper also suggests that the frequency of PCIPD meetings should be raised from once every two years or so to two times a year.

If this dim-witted impertinence is to go anywhere other than the dustbin, it would surprise me.

Today at lunchtime – and instead of lunch for those participating – there will be a briefing by Public Interest Public Interest NGOs on the WIPO Development Agenda. Sponsored by the Civil Society Coalition, IP Justice and the Third World Network, the speakers will include Georg Greve of FSF Europe, Thiru Balasubramaniam of the CSC and the Consumer Project on Technology (cptech), Pedro M. Simonetti of Computer Professionals for Social Responsibility – Peru, Ellen ‘t Hoen of Medicins sans Frontiers and Pedro Roffe of ICTSD. It’ll be moderated by Robin Gross of IP Justice.

This should be fun: The most provocative of the hardcore industry sector NGOs are sure to come and ask pointed questions – which with these speakers, I am sure, will find pointed answers.

The debate this morning was about points two and three of the list of proposals: The establishment of a standing committee on “Intellectual Property” and technology transfer; and a treaty on Access to Knowledge. These points being a bit more conflictive than the points discussed yesterday, this sparked an unusually vocal controversy between Brazil and the US.

With view to the “let’s leave everything as it is” US proposal of this morning (see last entry), the Brasilian delegate said: “I get the impression that the United States totally reject anything that regards development.”

This being largely true, the US delegate had no remedy but to bring up that glorious database idea again: Establish a website where people from developing countries can go begging to be thrown a few crumbs by the rightsholders. Oh, I shouldn’t call it a “website” anymore. The US consider that term derogatory.

Around the lunch break, NGOs got their speaking slot. When Georg delivered a statement on behalf of the global Civil Society Patents, Copyrights and Trademarks working group formed at the UN World Summit on the Information Society in 2003, a few jaws dropped. Not a miracle when, in the holy halls of WIPO, sentences like this are pronounced:

“Patents, copyrights and trademarks are designed to limit access and knowledge sharing. If applied wisely and with measure, they can foster creativity and innovation. If applied carelessly, they can kill both along with their potential benefit for society: progress. This holds true for any nation in this world, rich or poor, north or south.”

Being this clear is not quite customary here. It was especially good fun as he got to speak right after the Business Software Alliance, which is representing the giants of the software industry. Their delegate turned progressively more red in the face, got up and left the room and the building. Are big companies and their lobbyists so easily scared?

Ten other NGO statements have been put off until tomorrow morning.

For a concise overview of what’s been happening here, you might also want to check the new stories by IP-Watch.

As for the rumours department: During the afternoon, there might be a new paper from the EU. I don’t know if this will take the shape of a proposal or some sort of advising paper, and much less what it will contain. But during the coffee break right now, the EU is having a meeting in a side room. I’m curious what they will be cooking up. We will see that when the meeting continues after the coffee break.

It seems that the idea of more IIMs is through. Just a moment ago, the European Community finally came out with a somewhat clear statement. This calls for:

more IIM meetings like this one until July 2006 financing this with funding set aside for the PCIPD the proposals to be split into two groups. The first one should be the less conflictive ones. The second one are the more problematic points, which should be put on a list that will remain open for new ideas.

While this is highly provisional, it indicates the way this debate will take. The EU countries were the largest sort-of-solid block calling to push the Development Agenda to the PCIPD committee, where it would have floundered. Now that they have come around to supporting the continuation of the IIMs, the remaining opposition should not be decisive anymore.

This is good. It means that one of the bigger groups of developed countries have finally understood that this process is too far-reaching and important to go to a dubious committee.

The mountain of proposals is thus set to grow and grow. I already have an extremly impressive stack of paper next to my computer. Good thing I am going back home by train instead of by airplane: There’s no weight restriction on baggage there.

The IIM started almost on time, a rather unusual thing. After four new NGOs were accredited, the adoption of the report for the last meeting was on the agenda. While most corrections seemed fairly minor, Brasil (which, speaking for the Friends of Development, had said quite a lot) said they were going to present a full eleven pages of corrections, as they felt that the report seriously misrepresented the content of their statements.

Group B, mostly consisting of developed countries, in particular EU member states, has been trying to come up with a common position, but does not seem to have been overly successful. Asked if they had been able to formulate a common statement, one delegate said: “If you make it broad enough, everyone can agree.”

There is a new proposal from the African Group (.pdf, 150 KB). It explicitely supports the Friends of Development proposal an is not too bad overall. It has the customary bit about integrating development into all aspects of WIPO’s work. The statement re-emphasises some interesting points: It clearly states that rules on patents and copyright are tools for the greater good of society, not ends in themselves.

Another point, especially good since it hasn’t shown up too much yet, is that “knowledge has no bounds or confines, and has never had one single source”. The statement also calls for taking into account the UN’s Millenium Development Goals, which have until now not been much of a source of inspiration for WIPO’s work.

But there are some sore spots. The African Group wants national capability for patenting strengthened for local and traditional knowledge. This does not fit the nice words about greater sharing of knowledge said before, and is generally an unwise idea: Since the current patent system is biased against developing countries, they would not gain much from patenting traditional knowledge. They should rather aim for a reform of the system, which, by the way, is also causing considerable damages in developed countries.

Another weak aspect of the proposal is that it mentions things that really have no place in WIPO. It has a paragraph about stopping the “brain drain” from developing countries. While this is a laubdable aim, it does not really have a place in WIPO.

The problem is that this paragraph fits perfectly into the picture rich countries have about developing countries at WIPO: That those countries come in and demand unreasonable things. This is not helped by the fact that the African Group statement makes no mention of what governments of developing countries will themselves do to further development.

Even Brasil has asked what the proposal actually has to add to the topics already presented, although they of course very much appreciate the support for the Friends of Development proposal and the convergence with it.

The atmosphere is pretty professional and friendly so far. The shock that was palpable during the first and second IIM seems to have subsided considerably. Let’s see how this unfolds after lunch.

Discussion on proposals has begun

“The idea [of a Development Agenda for WIPO] is horrible, but luckily it’s starting to fray”, said one of the German delegates to the IIM. Not only does this not exactly make me proud of my country’ s position on this; it is also simply wrong. As during the last IIMs, the Group of Friends of Development is holding firm.

The discussion has gotten quite substantive, with few surprises so far. This is probably due to the fact that it has begun with three points that are contested, but not overly conflictive: Amending the WIPO convention to include language on development; setting up an independent evaluation and research office (WERO); and increasing Civil Society participation.

The question about the WIPO convention is basically if there should be an explicit reference to WIPO’s development mission. The Friends of Development are in favor of this, while many others are sceptical; they purport that the convention in its present form allows WIPO to do everything necessary for Development.

The question of an evaluation office involves money, so it is somewhat more contested. Most other UN bodies have some sort of internal audit, while “WIPO does not have an evaluation culture”, as one delegate told me. So the question is not so much if there should be evaluation, but how.

The call for a wider participation of Civil Society has sparked statements valueing their input and advice, but there seems to be a consensus that they should not get any voting rights (which is hardly surprising, considering that WIPO is an intergovernmental body.

The EU is trying to find a common position, but it has not had excessive success in that matter. The statements they have made are not really decisive.

Tomorrow should be more interesting, when the harder issues come up. This might be such things as having principles and guidelines for technical assistance. As this will actually have an effect in the real world, the discussion is sure to heat up.

Now the meeting is being closed. Time to post this entry and then go for dinner and a beer.

The public interest NGOs present at WIPO have published a common statement supporting the proposals of the Group of Friends of Development (.pdf, 3.3 MB) to establish a Development Agenda for WIPO. Those who want to support the statement can now sign up at www.ipjustice.org.

The common statement demands that: the development dimension should be present in all of WIPO’s work a treaty on Access to Knowledge (A2K for short) should be considered an independent WIPO Evaluation and Research Office (WERO) should be set up to monitor WIPO’s work there should be clear principles and guidelines for the technical assistance programme It also demands that WIPO’s norms and practices should be reviewed. Here, special attention should be given to: the respective costs and benefits of copyright, patents and trademarks the fact that patents, copyright and trademarks are not ends in themselves, but rather tools to foster the common good the issue that there can be no “one size fits all”-solutions the flexibilities built into copyright and patent laws greater transparency of WIPO and its work

There is already a sizeable number of NGOs supporting this, most importantly from developing countries. Feel free to express your support as well.

The meeting will start tomorrow. I’m curious what it will bring.

For those of you who read German: There’s a well-informed new blog on Free Software and Free Culture. At www.fair-code.net, Meike Richter is gathering news and events related to cultural life in cyberspace and meatspace.

This one looks like it’s going to be good.