The Secretariat confirming that all links mentioned in the document were accessible, noted that it would have been better for interested delegations to provide their respective input so that those could be consolidated with the others. It further stated that two different authors for the two different parts of those series of surveys had been selected. The first one was for a private documentation related to collective management; Mr. François Savie Lutan had been selected for his insight into all the related documentation in the world of collective management. The second issue covered private registration systems for which the Secretariat had identified a team led by a Professor Ricolfi of the University of Turin, composed of researchers from different regions including Africa, Latin America and Asia. Their respective roles were to conduct the survey on private copyright documentation systems and practices, which was designed to complement the survey on copyright on public registration systems. The Secretariat added that document CDIP/3/4 contained very descriptive information on those studies and represented the terms of reference (TOR). It nevertheless reckoned that in practice, there was a need to go beyond in making public the TOR for the studies on the copyright environment, and requested further guidance on that issue. The Secretariat pointed out that a certain margin of discretion was needed to maneuver in order to have an academic approach to the issue so the mandate received from the CDIP would be reflected in that very specific document described as thematic projects and the basis for commissioning the studies, as instructed by the Member States prior to publication of the report and results. In conclusion, the Secretariat explained that there were different ways to access that study, either through the Copyright section of the Web site or the Development Agenda section, the option chosen for that example. However, for those who chose to access it through the Copyright section, they would have to go to Copyright, then choose Current Topics and then Public Domain, from where other registration activities that had just been described before on the Registration Survey, could be found under the descriptive narrative before, then go to the Survey linked to the Development Agenda part of the Web site. The Secretariat had to take into consideration the fact that it was sometimes difficult to find information; in the recent past, however, great efforts had been made to structure and better organize the information regarding Copyright and its interface with the Development Agenda. The Secretariat concluded by expressing the hope that a positive result would be produced in that regard.
The Delegation of Brazil expressed its appreciation for the clarification on the document location, adding that an easier option would have been for that study to be included in the agenda of the Sixth Session of the CDIP. It further noted that not knowing that the study was available had prevented it from going through it in a timely manner, and would therefore have requested to have that document added to the next CDIP meeting as an official CDIP/7 item to be discussed.
The Delegation of Chile agreed with the Delegation of Brazil, pointing out that there had been some confusion with respect to the study contained in document CDIP/6/2. The document reported that the study was being translated, but the Delegation noticed that it was already available in Spanish. The Delegation pointed out that its capital had not had an opportunity to look through the document, which was why it would have been preferable to have it included for the following session as an important agenda item that required further discussion. The second point it wished to make was in relation to the study and the questionnaire on voluntary registration and deposit systems. The Delegation stated that for the purposes of that meeting’s records, Chile had sent its replies back in July 2010, and in that respect would request the Secretariat to update that information so that it could be reflected in that report. Finally, to conclude, in respect to the Patent component, despite the massive delays encountered, the Delegation confirmed its commitment to send its replies to that questionnaire shortly.
The Chair thanked the Delegation of Chile and said as no other Delegation had any more comments to make, he thanked the Secretariat for its well-prepared presentation and invited the Committee to examine the remaining four projects that were before it. In that respect, the Chair indicated that he would start with the project on IP and Competition Policy, and gave the floor to the Secretariat.
The Secretariat presented the report on the implementation of the project on IP and Competition Policy contained in Annex 11, stating that as it reflected the status of its implementation as of August, it was already a bit outdated. It went on to give a briefing first on the updates to that report then on the outcome of the global meeting on emerging copyright licenses. It noted that the first update on page 2 of Annex 11, in the penultimate line, where it said that the budget utilization rate as per the end of August 2010 was 13.2 per cent, should in rough numbers mean that by now the utilization rate was 85 per cent for 2010 and 40 per cent of the total of non-personnel resources. On page 3, as regards the Regional or Sub-regional Meetings, the tentative date of December 2010 was indicated for holding the next regional seminar. It therefore confirmed that the next Regional Seminar on IP and Competition Policy would be held in Pretoria, South Africa. The Secretariat was organizing it in coordination with the Competition Commission of South Africa. On page 4, the first row on Geneva-based Symposium on IP and Competition Policy, the Secretariat confirmed that on October 25, the second Geneva-based Symposium on IP and Competition Policy had been organized. The Secretariat reminded the Committee that there were two surveys, one on compulsory licenses and the other on the interface between franchising and anti-trust. Unfortunately, it had not been possible to report on a large number of responses received since the Secretariat had so far received only 35 responses to the questionnaire on compulsory licenses and 27 responses to the questionnaire on franchising and anti-trust. Regrettably so, one of the studies that had been identified to submit and to prepare that project would consist of a survey or at least a stocktaking on the relationship between national agencies involved with IP and anti-trust. Moreover, the data for use in developing the study would be obtained through the answers to one of the questions in the questionnaire on compulsory licenses, and only very few answers to that part of the question had been received. So when the final report would be prepared next year, Member States would be requested to possibly renew that exercise. The Secretariat then explained how the Global Meeting on Emerging Copyright Licensing Modalities had taken place on November 4 and 5, 2009, at WIPO Headquarters in Geneva. It had been very well attended, with over 350 participants, and had featured 40 different speakers. It had provided an impressive opportunity for the exchange of experiences and information on the interplay between copyright and competition policies and on the interplay between traditional licensing models and emerging new licensing modalities. All of the presentations were available online, as well as podcasts with their respective speakers’ oral presentations, on the WIPO Web page. There had been very interesting discussions on issues such as access to knowledge, business modalities in the LDCs environment, orphan works, software licensing and also infrastructure services providing metadata identifying works, right holders and licensing mandates. The Secretariat concluded by saying that the Global Meeting had also showcased the dialogue on the connections between different thematic projects, because it had revealed an emphasis on infrastructure services in the field of copyright that would be the focus of the global conference scheduled for the end of next year under the thematic project on IP and Public Domain.
The Chair thanked the Secretariat for its presentations and updates, and added that the Member States also needed to help the Secretariat by for example by responding to questionnaires when they were requested from the Secretariat. In that connection, he hoped that Member States would re-examine the possibility to answer those questionnaires.
The Delegation of Spain commented on the questionnaire distributed on compulsory licensing vis-à-vis anti-competitive practices in the exercise of IP rights. It explained that although it was in favor of the idea that the questionnaire should be distributed once again, something that could perhaps help in extending the number of responses and also the type of responses provided was that together with the specific mechanism on compulsory licenses in that case, the Member States could report on other measures that would have had an equivalent effect. For instance in some countries where there was a national competition authority and where the use of IP rights might have had an effect and anti-competitive effect, those authorities would therefore have the power and the competence to establish the fact that the IP owner in question would have to provide the licenses to its competitors. These measures of equivalent effect would be very interesting and it would be good for them to be included in the questionnaire if they were in fact to be circulated once again and would therefore generate additional replies.
The Delegation of Brazil in reference to the presentations and the program which were all available online as well as the PowerPoint observed that in some of those presentations and some of the seminars, speaker participation seemed a bit restrictive because, for instance, there was no mention of the possible participation of members of generic industry and SMEs, and currently there were more significant participants from big countries and competition authorities. The Delegation informed the Committee that it had also participated, and suggested that at present only a few developing countries had a competition authority, which might be a problem. However, that should not prevent the Committee from trying to broaden participation to other relevant actors.
The Secretariat, in relation to broadening the questionnaire, confirmed its ability to satisfy that request provided it did not exceed its mandate, and requested the Chair’s guidance on that point. It further stated that Member States would be requested to pay attention to the questionnaire on compulsory licenses, which had deliberately been drawn up in very broad terms. It included an explanatory footnote covering all measures that could lead to the possible exploitation of exclusive rights by third parties, even when those licenses were negotiated by the authority. Areas stated in the footnote consisted of those that were very close to voluntary licenses but nevertheless were voluntary licenses that were monitored by an authority. The Secretariat stated that there was no objection to having those questionnaires redistributed but that it had to wait for the guidance of the Committee in that respect. Likewise, it agreed with the observation of the Delegation of Brazil with reference to the Rio de Janeiro Regional Seminar organized in June, explaining that representatives of generic companies had been in attendance and had been given an opportunity to speak. It further confirmed that there had been representatives from consumer organizations, developed countries, and multilateral organizations. That was indeed the mandate received, and the Secretariat intended to follow suit every time there was an opportunity to make it possible to share experiences and views in order to better understand that interface. With regard to the seminar that would take place in Pretoria, the Slovakian Government had invited consumer organizations, because in Slovakia they had been very actively involved in trying to use anti-trust law to reduce prices of pharmaceutical products; that dovetailed with the comments made by the Delegation of Brazil and confirmed that Member States’ consideration and concerns were taken on board.
The Chair thanked the Secretariat for answering questions and suggested that the questionnaires be sent out again but as a reminder for Member States.
The Delegation of the United States of America acknowledged that it had missed part of the discussion but still wished to make a brief intervention on the project. It congratulated the Secretariat and its staff on the recent Global Meeting on Emerging Copyright Licensing Modalities, and observed that many enthusiastic comments had been heard about the event. It also commended WIPO in particular for organizing two recent Symposia on IP and Competition Policy, on May 11 and October 25, 2010. The United States officials who had participated in the said Symposia had found them very useful, and two anti-trust agencies in the United States, the Federal Trade Commission and the Department of Justice, were following the implementation of the project with great interest. The Delegation then noted that a few minor questions about the progress report remained unanswered. The first was that in the project description, it was stated that WIPO Licensing Training Programs would include a component on the Pro-Competitive aspects of Licensing and Anti-Competitive Licensing Practices. That training was also mentioned in the project outputs section of the report. The Delegation wished to know about when and where those training programs would take place, who would conduct them and what materials would be used. It further pointed out that IP licensing in the United States of America was generally recognized to be pro-competitive because it could facilitate integrating factors of production with IP rights, clear blocking positions among IP holders and allow for the efficient use of IP rights by allocating fields of use. Its third and last comments related to the progress on the project section that stated “as regards outcomes it can be concluded that the project has already started contributing to an enhanced cooperation and coordination of activities between national IP and competition authorities in a number of Member States”. The Delegation requested a fuller explanation on how that enhanced cooperation was being measured.
The Secretariat thanked the Delegation of the United States of America and with regard to the first question, stated that the Patent Division was in charge of organizing those courses on licensing and training on licensing, and that the Project Manager was only coordinating among the various Sectors, as a result of which the question could only be partly answered. As far as the Management was concerned, the Secretariat said it was directly involved with the preparation of the sixth language to be introduced into the course materials, which drew the attention of negotiators in developing countries mainly to the possible anti-trust implications of licensing agreements. It had been generally agreed that licensing of IP rights including patent rights tended to be pro-competitive, but that that was not necessarily the case, because from the point of view of consumers, if a patent owner licensed someone and maintained a situation of “collusion”, then for consumers nothing had changed. The Secretariat stressed the need to bear in mind that many licensing agreements were mere inducements that patent owners paid to prospective or potential challengers to their patent rights, and in practice, it appeared that some developing countries maintained activities of monitoring licensing agreements to see whether they detected anti-competitive clauses in their contract or not. Whether that was good or bad of course was something that only experience could show. But the main objective of that text to be used in that training exercise was merely to draw attention; it was not to teach negotiators about anti-trust law but rather to raise awareness that some anti-trust concerns might arise from licensing agreements. In terms of outcomes, the Secretariat was in the process of implementing the project and was therefore far from the end. The project was expected to end in 2011, and was being implemented in phases. The Secretariat further pointed out that something that had been omitted in the report was, in order to get concrete results, the opening of a dedicated page on the WIPO Web site with the full report of the activities of the components being implemented concerning the seminars and the symposia, where Member States could find the transcription of some reports, presentations and so on.
The Chair announced the program for the following day and referred to additional project reports that needed to be reviewed in document CDIP/6/2 as well as in document CDIP/6/3, which was also a document dealing with very important issues that needed to be analyzed and examined. He expressed the hope that he would be able to conclude deliberations on the following morning, enabling the Committee to get back on track with the program of work he had outlined at the beginning of the session. That would mean hopefully that by the following afternoon, the Committee would move on to Agenda Item 6 and look at such key issues as the projects on transfer of technology, patents and public domain and others. Before closing the session, the Chair reiterated his thanks to the Delegations present that day, for the very friendly and positive atmosphere in which they had worked, which he noted as very constructive, especially in their interactions with the Secretariat that had really reflected their enthusiasm to get more deeply involved in the work of the Committee and to really listen to what had to be said and taken on board.
The Secretariat introduced the progress report on the project on IP, Information and Communication Technologies (ICT) the Digital Divide and Access to Knowledge, contained in document CDIP/6/2, Annex 12. The project had two parts: one on copyright and access to knowledge, and the other on digitization of IP rights. The copyright component of the project was based on the rationale that the copyright system including its flexibility could play an important role in enabling access to information and communications technologies and to information and knowledge, thereby helping narrow the digital divide. The project aimed at providing Member States with a source of relevant and balanced information on opportunities opened up by new models of distributing information and creative content that emerged from public policy, that is to say, the policies of States, and focused on three exemplary areas, namely, education and research; software development; and what are called e-information services, which specifically refer to e-journals and public sector information. The project consisted of three studies that would survey legislation, public policies and government strategies, with examples taken from Africa, Latin America and Asia. The interim report would be ready for review by the Secretariat in December 2010 and would be presented at the workshop to be held in Geneva in February 2011, following which the studies would be finalized and made available to the Member States in early May 2011. The Secretariat further clarified that when reference was made to public policies, the fact-finding that was being undertaken was horizontal in nature, looking at ways in which Governments used policies like tax incentives, incubators, public-private funding, and software incubators in the area of software for example, to make available public sector information more widely to the public. It was an attempt to show where the links either already existed or could exist in the policies of Member States, between content protected by IPRs and making that content available more broadly through incentives, subsidies and policies that might come from other parts of Government infrastructure. Thus, it was an effort to understand where policies that promoted access to content could come from, including but not limited to intellectual property copyright policy. The second component of the project was the digitization component, the purpose of which was to assist Member States in digitizing paper-based documents and to transfer the knowledge and skills for the creation of national digital IP databases. The Secretariat informed that the project had started in eight countries in 2010 and would commence in another nine countries in 2011. It further confirmed that both components were on track.
The Delegation of Mexico requested for the names of the eight countries in which the project had already commenced.
The Delegation of Panama informed the Committee that it had been working on the digitization of documents through software tailor-made for its needs, and sought the view of the Secretariat as to whether there was a possibility of using WIPO Scan to make compatible what had already been done in Panama so that it could also use that methodology.
The Secretariat in response informed the Committee that the countries in which such digitization projects were being carried out were the Dominican Republic, Colombia, Argentina, Guatemala, Vietnam, Kenya, Zambia and Namibia as well as ARIPO. It further reported that the whole automation system for the operation of Marks and Patents of ARIPO had also been set up. As for the compatibility of the software that was used in some countries and that of WIPO, the Secretariat confirmed that it would be prepared to work with Panama to see how that could be done.
The Secretariat then introduced the project “Developing Tools for Access to Patent Information” DA_19_30_31_01 Annex 13 of document CDIP/6/2. The main objective of the project was to provide developing countries including LDCs with tools that would facilitate not only the use of and access to patent information on specific technologies but also the capacity to analyze such information. The project had three main components. The first component entailed the preparation of 12 patent landscaping reports that would exploit the vast resources of patent information and provide an analysis of all specific technologies and related existing IP-rights for selected areas. Consultations were being held in that regard with several IGOs, including WHO, UNITAID, FAO, ITU, UNIDO, and UNDP. So far, the Secretariat had been working on the patent landscape of the antiretroviral drugs “Ritonavir”, and “Atanazavir”, both of them in cooperation with UNITAID. Within the framework of the WHO Initiative for Vaccine Research, work had also been done with one vaccine manufacturer and other projects had been carried out with FAO and other organizations. The procurement process had commenced, and expressions of interest had been invited for the landscape report. To date, 33 potential contractors had been pre-qualified to undertake that work. The other important subcomponent regarding the project was the e-tutorial which would provide training on using and exploiting patent information and patent analysis in particular. The process of procurement for outsourcing the preparation of the e-tutorial had also begun, and it was expected that the 12 patent landscape reports as well as the e-tutorial would be completed and published by the end of 2011.
