Hi all, dis kam hier vor kurzem auf der Linux User Group Victoria an.
Gruss Peter -------- Urspruengliche Nachricht -------- Betreff: Fwd: [Fwd: [Commons-Law] Dramatic End to WIPO SCCR Session] Von: Russell Coker <[EMAIL PROTECTED]> Datum: Mon, 22.11.2004, 03:46 An: [EMAIL PROTECTED] ---------- Forwarded Message ---------- Really weird things happening at WIPO, the Intellectual Property watchdog. Looks like it's now biting its own tail (and more) really bad. If I read this correctly, the look alike of the 'Washington consensus' on global IP is breaking down real fast... ---------------------------- Original Message ---------------------------- Subject: [Commons-Law] Dramatic End to WIPO SCCR Session From: "Shyamkrishna Balganesh" <[EMAIL PROTECTED]> Date: Sat, November 20, 2004 11:47 am To: [EMAIL PROTECTED] -------------------------------------------------------------------------- A futher update from Geneva... On the last day of the SCCR-12 session here, during final discussions on the WIPO Broadcast Treaty, something absolutely unheard of during WIPO Standing Committee negotiations happened. Towards the middle of the third day (around noon), it soon became clear that consensus would not be reached on several issues. For instance, the US insisted on the inclusion of webcasting, Brazil on the deletion of technological protection measures altogether and so on. The normal procedure at an SCCR session is that at the close of discussions, the chair drafts a tentative conclusion which is then discussed and modified by member nations, and then finally accepted as the conclusion of the whole standing committee. Prior to the end of discussions, the Brazilian delegation had made it clear that it was not in favour of regional consultations, but would prefer an inter-sessional consultation meeting. This proposal was supported by the delegations of India and Egypt. (Note: The rationale here appears to be that the WIPO Secretariat is pushing for a 'divide and rule' approach to getting consensus on the treaty. Since the major dissenting voices on the treaty are each from different parts of the world - India, Brazil, etc - a regional consultation process would isolate these countries within their local regions and prevent them from coordinating their oppositional efforts. Consequently, these countries viewed the regional consultation process as totally uncalled for.) When the chairman returned after lunch with his draft conclusions, it was clear that there was no consensus on the substantive parts of the treaty. In addition, the chairman did not include Brazil's proposal for an inter-sessional conference even as an option. Brazil immediatelz objected to this conscious omission and was joined by India - which even suggested alternative language to leave both options open. The chairman then suggested deferring the decision to the WIPO Secretariat. Brazil immediately raised an urgent point of order (which gets priority over all other interventions and entitles a member to a right to intervene) and pointed out that leaving this decision to the Secretariat was improper since the WIPO was a member-driven organization and not a secretariat-driven one. Now began the entire drama... The representative of Serbia immediately took the floor as another point of order and pointed out that under the WIPO Rules of Procedure, Rule 14 mandates that when making a point of order, a member nation was not to advance argument on a substantive issue at all and that Brazil had violated this by clubbing his argument on the member-driven nature of the organization with his plea for an inter-sessional consultation. The chair thanked the Serbian delegate for the intervention. Almost instantaneously, Indian flag went up - on another point of order! The Indian delegate agreed with the Serbian delegate's point, but noted that India had always believed that in a forum such as the present one, the substance of an argument was more important than its form, as far as rules went. Nevertheless, he pointed out that if the SCCR wanted to get procedural, he was ready to play along and then out of the blue (quite literally) pointed to a provision in the WIPO Rules of Procedure which indicated that a single person could not be elected as chair of the SCCR for more than a single meeting and since the present chair (Mr. Jukka Leides, from Finland) had been chair for the last several meetings, his very appointment was procedurallz invalid. The chair was shocked; he didnt know what to say. For the first time, a country was questioning his very election as chair. The WIPO legal counsel then intervened to point out that at the 3rd SCCR Meeting, the committee had decided to deviate from the Rules of Procedure in this respect. This wasnt going to be enough for India. In a series of exchanges, reminiscent of a courtroom, the Indian delegate drove home the point that each SCCR was an independent committee, and consequently, what the 3rd SCCR adopted (ie., the deviation) was binding only on it, and not on subsequent sessions unless they too made a decision to adopt the rule, prior to the chair's election. Consequently, he pointed out that the procedural illegality persisted; the WIPO legal counsel didnt have an answer to this. It appeared that things were heading to a stalemate - all because of the Brazil-India alliance! The chair suggested that since there was a deadlock and no consensus on most issues, the conclusions he had drafted could (under WIPU Rules of Procedure again) be categorised as the 'chair's conclusion' rather than the 'committee's conclusions'. India once again raised its flag on a point of order and objected that this would be right either - since the very validity of the chair was being called into question, it wouldnt be the chair's conclusions but the conclusions of the Finnish delegate occupying the chair at the moment (!!). The chair didnt have an answer to this either. Nothing seemed to be working and it appeared that the entire SCCR proceedings were going to be abruptly terminated. Normally, at SCCR meetings all decisions are made by a consensus - an issue is nver put to vote. The SCCR is considered the expert body of the WIPO and the actual diplomatic process (i.e., voting) is left to the next stage, the diplomatic conference convened by the General Assembly. When all of this was happening, the chair soon realised that if he didnt do something drastic, the stalemate would continue. In an absolutely unprecedented move, he asked countries to make a show of support for his proposal by raising their flags. This is most unusual - since a vote is never taken at an SCCR (sînce there are dissents on all provisions) and even at other proceedings, it is always for the proposal of a member nation, not of the chair. In the end five countries including India and Brazil placed on record their disagreement by raising their flags and large number of other countries voted to have the chair's proposal accepted. Notably, the US and EC abstained from the entire vote - probably indicative of their disagreement with the procedural validity of it all. All of this means that the SCCR is unlikely to be able to push the treaty through in the immediate future. Having set a dangerous precedent of having a vote taken in Standing Committees, countries are now likely to call for a vote on most controversial issues. When the issue is one on which the division is along North-South lines (which wasnt the case here, since many small developing countries were seeking to keep their large trading partners happy), the developing countries are certain to have the upper hand. It also means that in the future, the smooth functioning of the WIPO is likely to be repeatedly disrupted. For the SCCR, this of course means that the chairmanship of the current incumbent is likely to be a hotly contested issue during the next session - both politically and legally, given the Indian delegations comments. It also remains absolutely unclear on what the countries were voting - whether the conclusion is going to be the chairman's draft after all and the legal validity of such a draft. In a sense, the entire last couple of hours effectively threw the process into a sort of anarchy with no one being clear on what finally transpired, legally. An answer to the Indian delegation's challenge to the validity of the chair's election was not provided and the chair left the room immediately after close of the proceedings. The acrimony generated by these events is likelz to spill over into all of the WIPO's future activities and hopefully, it will begin to realise that its mandate isnt necessarily stronger intellectual property rights, as much as it is one of ensuring greater balance within the existent rights frameworks. Again, transcripts of the day's proceedings are available at the website of the Union for the Public Domain (UPD) at <http://www.public-domain.org>. I was extremely impressed with the Indian delegation, which did a spectacular job, exhibited a critical awareness of the problems developing countries face with IP expansion and accepted the responsibility of challenging WIPO's apparent one-sidedness in the face of stiff international and political opposition. I personally spoke to the Indian delegation and commended them for what they were doing....I think they made us all very proud and gave us hope for the future. - Shyam. _______________________________________________ commons-law mailing list [EMAIL PROTECTED] https://mail.sarai.net/mailman/listinfo/commons-law ------------------------------------------------------- -- http://www.coker.com.au/selinux/ My NSA Security Enhanced Linux packages http://www.coker.com.au/bonnie++/ Bonnie++ hard drive benchmark http://www.coker.com.au/postal/ Postal SMTP/POP benchmark http://www.coker.com.au/~russell/ My home page -- To unsubscribe, e-mail: [EMAIL PROTECTED] For additional commands, e-mail: [EMAIL PROTECTED]
