WIPO Transparency Wins Praise, Gaps Remain

7 January 2014

By Toby McIntosh

WIPO, the World Intellectual Property Organization, has been lauded for the openness of a recent, successful treaty negotiation, but the Secretariat has annoyed some members by denying them access to specific reports.

When it comes to transparency about negotiations, observers said the Geneva-based WIPO has few peers among international intergovernmental organizations. Documents are disseminated early and in multiple languages. Observers are given participation rights and wide access. Webcasts offer viewing for a wider audience.

“We used to get yelled oat for taking pictures, but now they have a guy doing it,” recalled one veteran WIPO observer.

The expanded transparency policies were in place for negotiations that resulted in the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.

The talks took place with an unusual degree of openness and inclusion, according to close observers of the process. There were ongoing releases of draft negotiating documents and stakeholders could watch the negotiations either in person or remotely via audio feeds and webcasts.

“The successful outcome of the Marrakesh Treaty’s highly open process disproves any notion that transparency inhibits resolution,” wrote a group of law professors recently.

The “miracle” conclusion, as one commentator labeled it, is a treaty, agreed to June 28, 2013, that provides exceptions and limitations to copyright laws designed to help persons with visual, learning or physical impairments. (See WIPO summary.)

Still, observers point out, a lot of negotiating was done in nonpublic sessions and continues to be.

WIPO is a specialized United Nations agency based in Geneva that was established in 1967 “to encourage creative activity, to promote the protection of intellectual property throughout the world.” With 186 member states, WIPO administers 26 international treaties and has an active agenda of new projects and ongoing negotiations.

More Informals?

The WIPO policies have not eliminated closed door negotiations and nobody expects 100 percent transparency, including strong advocates of transparency interviewed by FreedomInfo.org.

The emerging transparency issues in the WIPO environment focus on the handling on such private negotiations, known as “informals.”

Some observers sense an uptick in behind-the-scenes activity in the major WIPO negotiations now ongoing concerning copyright protections for broadcasters. (See WIPO description and a critical summary by Creative Commons.)

Five days of talks on a broadcast treaty were held in December in Geneva. The WIPO copyright committee “mostly made progress” toward a treaty, according to an Intellectual Property Watch article by Catherine Saez.

“I was shocked at how many `informals’ there were at the last meeting,” said one long-time WIPO observer.

“A lot of the nitty-gritty, to use the technical term, is being negotiated off camera,” commented Sara Bannerman, an Assistant Professor at McMaster University in Hamilton, Ontario, Canada. She specializes in copyright law and writes about WIPO on her blog.

Despite the reputation of the Marrakesh talks as being conducted in a very transparent way, informals were critical in the final stages of the successful outcome in Morocco, according to those who were present.

“The reason they go into the informals is they can take positions they may not want to be accountable for,” commented Jamie Love, director of Knowledge Ecology International, a Washington-based NGO. But despite his belief that closed sessions are misused and while he would like to see their use limited, he acknowledges their value.

`Informals’ Style Issues

If informals are a fact of life, interest is bound to focus on the when and how often they are held, the rules surrounding them and their impact on the process.

One typical observation is that despite the closed doors a fair amount of information still gets out.

Nothing bars government delegates inside the meetings from sending text messages to allies and journalists on the outside, or talking about the meetings later.

In a curious twist during the Marrakesh negotiations, some “official informals” were audiocast to another room, where they could be heard by representatives of companies and NGOs. Attendees, however, had to pledge not to disseminate the information.

This upset NGO representatives, who argued that the policy kept them from informing their constituencies and the public. By contrast, private sector lobbyists could report back to their employers without running afoul of the restrictions.

Compromise requests to be allowed to disclose the substance of the meeting, without using names – Chatham House rules – were denied by WIPO officials, some say at the urging of US and EU delegates.

The availability of documents also suffers during informals, according to WIPO observers. A draft text may be available for the beginning of the closed door discussions, but there is usually no or limited documentation issued during the course of the meetings or even at recess. In Marrakesh, for example, interim texts came out during some informals, but did not always identified the authorship of proposals.

Reporting on the broadcast treaty talks, one observer said in a December blog update, “The conclusions have been drafted (I briefly saw a leaked version) and the group coordinators have met with the Chair.”

Another concern is that the informal conduct of business means there is no official record of government positions.

Love of Knowledge Ecology International recently posted online the 300-page negotiating record of talks held back in 1961 to make the point that past historical records were more robust than those now produced. To help with later interpretation of treaties, he suggested that recordings or detailed accounts of negotiations be kept, to be released five or 10 years later.

More Transparency Sought by Members

Outside of the negotiating realm, there are aspects of WIPO operations that are not as transparent as some member countries would like.

In several recent instances, the issue hasn’t been public access to information, but member access to information.

In July of 2013, proposals were discussed to create a “WIPO Training Center” to replace the WIPO Academy. Recommendations from the WIPO Secretariat were based on an independent review conducted in 2012.

When members of the Development Agenda Group asked to see the review, WIPO officials said it was an “internal tool” not meant for distribution, according to an article by Sangeeta Shashikant for Third World Network.

The eventual compromise was to produce an executive summary of the independent review.

Similarly, at the 11th session of the Committee on Development and Intellectual Property (CDIP) in May 2013, developing countries requested access to more information, according to an article in Third World Network by K. M. Gopakumar and another by Saez in IP Watch.

Representatives from Africa and Asia asked to know more about what WIPO is saying in other international fora, such as the discussions about the United Nations post-2015 Development Agenda. Director General Francis Gurry’s report on implementation of the Development Agenda wasn’t specific enough, the critics said. In reply, representatives from developed countries warned against “superfluous micro-management.”

A more detailed account of the engagement of WIPO was promised, Gopakumar reported.

Working Groups Documented

WIPO provides considerable public information about the activities of its standing committees.

In advance of the Marrakesh meeting, the Standing Committee on Copyright and Related Rights did the preparatory work, Bannerman pointed out. She commented that “a great deal happens off-camera there as well, but a decent amount of substantive discussion happens in the actual formal meetings, which I think is probably not as true of the diplomatic conference itself.”

An overview of the “decision-making and negotiating bodies” of WIPO is on a web page that lists the groups and their topics, summarizes their past work and provides links to many documents.

For example, the page for the Standing Committee on the Law of Patents, for example, includes an agenda for a January 2014 meeting with entries such as:

 6. Exceptions and limitations to patent rights   See documents SCP/14/7, SCP/19/6 and SCP/20/3 to 7.

The page includes reports and other documents for the upcoming meeting. There’s information on the five substantive topics that have been under consideration the most. A “background” section summarizes developments since 1998, with links. There’s also a “Recent Developments” section, and the page concludes with “Links.”

The archives for a typical committee meeting will begin with the agenda and proceed through a long list of other documents. WIPO for many years has translated documents into the six UN languages, as evident here with the extensive collection of materials for the “Assemblies” meeting in October 2013.

For meetings about to occur, draft materials, such as member country proposals, may be posted, and new texts may be posted during the course of the meetings, which often last several days.

This helps observers follow the action and facilitates very detailed reporting on the negotiations, with frequent links to text, as in this Dec. 22 report by Catherine Saez in Intellectual Property Watch about the conclusion of talks on a broadcasting treaty.

Leaks of unpublished materials occur occasionally. One observer lauded Intellectual Property Watch for publishing draft texts or other documents, “either earlier than or in addition to the documents that WIPO publishes.”

Webcasting Grows

In May 2012, WIPO announced plans to webcast the meetings of principal committees and other bodies. The webcasting resulted from a recommendation adopted at the 49th Series of Meetings of the Assemblies.

WIPO provides Video on Demand to allow playback of sessions that have already taken place. (See website.) A FreedomInfo.org review of 2012 indicates that 22 multi-day meetings were webcast.

For example, recent meetings of the Standing Committee on Copyright and Related Rights were webcast and the videos remain available.

A recently designed WIPO web page states: “We are committed to transparency and inclusiveness. All meeting documents are available online. You can also freely follow discussions in our Assemblies and Committees via our live webcasting service, or access videos of past sessions.”

Director General Gurry said WIPO hopes the new website “will be a much better tool for accessing the information.” Significant improvements were implemented, he said, amongst which the new website “responsive design” that adjusts the presentation based on the device being used to access the website.

Webcasting/Transcripts Initiative

Although the webcasting has won praise, there are limitations. There are no posted transcripts and it can take a month or two for written reports and/or minutes to come out.

A bootleg transcript for some session was prepared by Manon Ress of Knowledge Ecology International. In extensive posts, she included large sections from the closed captioning of the Dec. 16-20 meetings of the Standing Committee on Copyright and Related Rights.

In another response, Bannerman has started www.wipomonitor.org.

Still “very much in its infancy and very much in trial mode,” she said, the plan is for volunteers to take notes while watching the webcasts, including timestamps of when particular parties spoke, to facilitate monitoring of what’s happening in real time. WIPOMonitor tracked much of WIPO’s recent General Assembly here: http://www.wipomonitor.org/meeting-minutes/ and will experiment with a wiki format (http://www.wipomonitor.org/wiki/index.php?title=Main_Page / http://www.wipomonitor.org/wiki/index.php?title=CDIP_12/VIDEO_1).

Bannerman has been following transparency issues at WIPO for many years. Back in September of 2010 she wrote a blog post raising objections to plan by the Program and Budget Committee to reduce translation costs by ending the issuance of verbatim reports of its meetings, and producing instead only a summary report, translated into the six UN languages. The meetings would continue to be recorded, though at the time it wasn’t clear that the recordings would be made public.

Accreditation of Observers

WIPO has what is regarded as a liberal policy on accrediting stakeholder organizations and interest groups as observers at formal meetings and in consultation processes, sometimes underwriting their expenses.

“Some 350 organizations are currently accredited as observers at WIPO meetings,” according to the website, which also provides a regularly updated list of observers.

WIPO required observers to apply, which essentially involves describing the organization.  Applications must be approved, too, based on a set of principles:

  • The organization shall be essentially concerned with intellectual property matters within the competence of WIPO and shall, in the view of the Director General, be able to offer constructive, substantive contributions to the deliberations of the CDIP meetings;
  • The aims and purposes of the organization shall be in conformity with the spirit, purposes and principles of WIPO and the United Nations;
  • The organization shall have an established headquarters. It shall have democratically adopted statutes, adopted in conformity with the legislation of the Member State from which the NGO originates. One copy of the statutes shall be submitted to WIPO;
  • The organization shall have authority to speak for its members through its authorized representatives and in accordance with the rules governing observer status; and
  • The admission of national NGOs to observer status shall be the subject of prior consultations between Member States and the Secretariat.

Although observers are not officially permitted to speak, they sometimes do, as noted in this comment in 2011 by Mexico to the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional:

“To date, the Chair of the Committee has allowed observers to speak at IGC sessions on any agenda item and put forward drafting proposals, which may be incorporated in the text under consideration if it receives the support of at least one Member State.

“This practice contravenes the provisions of Article 24 of the WIPO General Rules of Procedure, since under that Article observers do not have the right to submit proposals, amendments or motions.

WIPO In January 2012 did a study of the consultative process, and many of the recommendations designed to strengthen participation were adopted at a February committee meeting, according to the meeting minutes.

Efforts to ensure the “full and direct participation of Indigenous Peoples in the IGC’s negotiations are in place, including the WIPO Voluntary Fund, participation of Indigenous-selected experts in expert drafting groups, Indigenous Panels which precede each IGC session, and a WIPO-financed secretariat for Indigenous and local community participants during each session,” according to an August 2103 statement by WIPO Director General Gurry. He also listed an Indigenous Fellow program and an Indigenous Expert Workshop.

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Filed under: IFTI Watch

ABOUT IFTI WATCH

In this column, Washington, D.C.-based journalist Toby J. McIntosh reports on the latest developments in information disclosure in International Financial and Trade Institutions (IFTI).
Contact: freeinfo@gwu.edu or
1-(703) 276-7748