The final dramatic afternoon of the Development Agenda debate

[Well, dramatic for WIPO, anyway]

Real-Time Notes on the Final Discussions of the IIM

During my four trips to WIPO this year for the development agenda debate, I haven't attempted to blog the real-time discussions, because it would have been quite boring, and my fingers would have gotten very tired. However, I did so for the final afternoon's discussion, just to give you a feel for what it was like, and because I thought it would be contentious and thus interesting. I was right.

But unless you're really interested in how these debates go, you can scroll down to the very bottom to see how things concluded.

After a lengthy (3:15) and apparently contentious closed informal session of negotiations, it's all come down to this, according to the Chairman:

• All delegations agreed that the process must continue

This leaves WIPO with two options for continuing the process, either moving the discussion to the Permanent Committee on IP and Development (which the US, Japan, and a few EU countries advocate), or to continue the IIM process (which the S. Americans, Africans, and Arabs want). The Chairman says that the majority favor continuing the IIM process, but "several delegations" could not support that.

Just for fun, note the phrase "several delegations", and watch how this characterization evolves throughout the discussion.

So the question is how the process can continue when there is no agreement on the process?

• Argentina says they are sorry that we are unable to come to a consensus because "of a few delegations."
• Argentina says that "goodwill" and a "constructive attitude" were demonstrated by all but a "few delegations."
• Argentina is asking that the final IIM report to the General Assembly recommend that the General Assembly renew the IIM process.
• India says that they are surprised that there is objection to a continuation of the IIM process. They understand differences of opinion about the substantive matters, but they are surprised that "one or two delegations" feel that there is no possibility of reaching a substantive outcome through a continuation of the process.

Back Story: The "few" or "one or two" delegations that no one is naming are the U.S. and Japan.

• India says it "baffles us" that "one or two delegations" are trying to "change horses midstream." In fact, these delegations are asking us to "change from a horse to a mule" (referring to the PCIPD).

Back Story: These speeches are at the very least complaints about the U.S. and Japan, and perhaps even an attempt to supersede the compromise just arranged in the informal session. Most importantly, they are trying to isolate the U.S. and establish blame for the "failure " of the process on the US and its allies

• Sri Lanka says "there was a large majority" favoring a continuation of this "truly historic" series of meetings.
• Sri Lanka says that there are substantial proposals that have not yet been discussed.

Back Story: Of course, these proposals were only introduced today, or yesterday afternoon. Are you allowed to wait until the last minute to introduce a proposal, and thus indefinitely extend the process?

• Sri Lanka says "there is nothing to be afraid of" in continuing this process.
• Sri Lanka says "if all we can achieve is a factual report, we hope it will be an accurate one.

Back Story: This is the compromise that was supposedly reached in the informal session. That a report would be forwarded on to the General Assembly simply stating the facts, and not making any specific recommendation.

• Pakistan says that the General Assembly charged the IIM with examining whatever proposals would emerge. Since proposals have emerged today that have not yet been discussed,
• Pakistan says that the first IIM session (April) was wasted on useless process discussions, and that's one reason why the IIM process should continue.

Well, I have to give Pakistan that one. The first session was a waste of time. But I don't see how that was the fault of the U.S. The U.S. actually had very little to say at the first IIM, other than to propose several constructive suggestions about reinvigorating the PCIPD. Don't see how that caused a waste of time.

• Pakistan says the work has not been finished, and now we are being told we have to shut down the process.

Notice a continuing effort to undue the agreement reached in the informal session. Notice also that no one is proposing shutting down the process. The process was predetermined by the General Assembly to be a series of three meetings and a seminar, all of which have been held according to plan.

• Pakistan says this reflects a lack of seriousness on the subject of development, which is particularly disappointing happening in this year when development has been such a high priority topic.
• Pakistan says their delegation still has hope that the process will continue. The mandate has not been discharged properly.
• Pakistan says that the situation is a "consensus minus few" situation.
• Pakistan says that if we are truly serious about development, the minimal acceptable result is a continuation of the process.
• The U.S. says there is broad consensus about continuing this discussion, but that their position is that the discussion should continue within the PCIPD, including a new mandate for the PCIPD
• The U.S. says that the proponents of the Development Agenda have received enormous technical assistance from WIPO over the years, and it is unseemly for them to be complaining about WIPO's lack of functionality.
• Morocco says they like all the proposals and would like to see things continue.
• Chile says it agrees with Argentina. Proposals submitted just yesterday deserve full consideration. And Chile plans to present a proposal that they wish to have considered as well.
• Japan says it has noticed that the IIM process has been useful for these three sessions, but as the US has correctly pointed out, the IIM process was mandated by the GA to be 3 sessions, and to end after the July session. Thus it is appropriate for IIM to end. It is not appropriate for the IIM itself to decide the future of the IIM. It is the General Assembly's prerogative to decide that in September.

Back Story: The U.S. and Japan are responsible for the majority of WIPO's budget. It is no surprise to see Japan and the U.S. holding the line on this issue. What has been a  surprise (to me) has been to see the EU's defection.

Background: The Japanese delegation is very reliable, and very strong on IP protection. But their history is that they don't act without consultation with their government back home, and so they tend to not be nimble negotiators. But they've been reliable allies.

• Bahrain suggests that the GA can decide whether or not to continue the IIM process.
• Brazil says it is frustrated that a consensus could not be reached built upon the view of the majority of delegations. Brazil feels that it is inappropriate to discontinue this process "midstream."

Back Story: Note the assertion that the process isn't finished. The process was determined by the General Assembly in September, 2004, to be a series of 3 meetings and 1 seminar, and to conclude by July, 2005. The process is NOT midstream. The process is concluded, albeit not in the way desired by Brazil.

• Brazil says it is unfortunate that the "desires of a few delegations" has blocked consensus. It speaks very poorly of how WIPO views the importance of development. Brazil demands that the report reflect that "a majority of delegations desired a continuation of the process."

Back Story: I am told reliably that Brazil was highly insulting to the US in the informal session.

And Brazil wants a seat on the Security Council?

• Mexico says the report should reflect the factual details of the discussions.

Comment: Mexico has been dependable and supportive of the pro-IP agenda.

• China says the IIM process should continue.
• South Africa expresses its disappointment that an attempt to talk about development at WIPO has resulted in confusion about the direction of WIPO. It only makes sense to take the matter further to the General Assembly. South Africa wants it to be known in the final report that the South African delegation is not happy about the injustice and poor treatment that was given to the proposal from the African Group. Their proposal should receive the same attention within the same structure as were the other proposals. Let all proposals have equality of treatment.

Reminder: Remember, they didn't make their proposal until yesterday. Brazil's and most other proposals were received in April, or June even.

Back Story: It's 6:15 pm, and the Arabic, Chinese and Russian translators are leaving. Some delegations are under instructions to leave the moment their languages are no longer available. The remaining English, French and Spanish translators have agreed to stay until 8:30 pm. I'm reliably told that the French delegation will absolutely leave when their language is no longer available.

• Algeria says that the African Group's proposal has been unfairly not given an opportunity for consideration, and they want this reflected in the final report.

Observation: Iran has just put their plaque up, indicating their desire to speak. I can't wait to find out what this bastion of property rights and economic wisdom has to say.

Update: Iran never spoke.

• Senegal insists that all proposals be dealt with on an equal footing. That is why the IIM process should continue. Senegal also thinks the momentum of the current IIM process should not be lost.

Cynical comment: Momentum?

• Senegal insists that the report should inform the General Assembly of what really happened: Namely, that the African proposal was not given fair treatment, and that a small minority of delegations prevented consensus.
• The Chairman has noted that we now have only English, French and Spanish translation. He urges delegates to be brief, so that we can get our business done while we still have translation.

Observation: That's kinda how it goes. I'm getting tired of typing, so I'll just hit the highlights from now on.

• Bolivia says there is a consensus "with the exception of one or two delegations." Bolivia says this will hurt WIPO's credibility. The UN is being reformed. Shouldn't WIPO?

Anticipating questions: You may be wondering right about now why they don't just have a vote? They don't vote here. It's a consensus-driven organization. Voting is considered beyond the pale.

• Egypt says they support the statements of [they now read a list of every country that has spoken except for the US and Japan]. "Very few delegations" are stopping the will of everyone else. Egypt singles out Japan's statement--disagrees with something they said. Egypt reiterates that the IIM should not be a permanent body, but that its work should continue.
• Canada says that there is unanimity that the process should continue, and that the African proposal should be treated on an equal footing. Canada is optimistic that consensus can be reached at the General Assembly meeting in September.

Comment: Thank you, Canada. That was support, albeit weak support. I had dinner with the Canadian delegate two nights ago, and he is a very good guy who completely gets it. But it's not Canada's way to be as aggressive as the US has been in such forums as these.

• Nigeria says that the Chairman "has ten ears." He says this is a saying in his country about how a good leader listens to everyone. Nigeria is very strongly supportive of a continuation of the IIM process. Nigeria says "there is merit in one or two things that they said." Nigeria says that this process has failed because the discussion has not been structured properly. Even with an extension of the IIM process, continuing in this vein would get us nowhere.
• India wants to know if "the two delegations who are opposed to this" are willing to have their names reflected in the final report. He suggests this as a means of making it easier to produce the report. "Would the two delegations who object be willing to have their names listed as not sharing in the consensus?"

It's "name and shame" time. Notice how we keep moving down the funnel to isolate the US and Japan.

Notice also how we're trying to move to a new formulation of "consensus minus two".

• Argentina says "consensus is based on the majority."

Actually, no. Consensus is either unanimity or not, according to WIPO's practice.

• The UK speaks.

Remember, the EU (for whom the UK speaks) has decided to abandon the US and Japan.

• The UK says that the time in the IIMs has not been wasted. We at least understand each other now. The UK feels that this matter should now go to the General Assembly. A factual report should go to the General Assembly for a decision on how to proceed.

Okay, so the UK has been helpful.

• The US says that they can go along with a short factual summary that would go out to the General Assembly, but it's not just "one or two countries" that are preventing consensus. A number of countries have indicated that the proper forum for this decision is the General Assembly.
• Switzerland would like for this meeting to have ended with a firm recommendation. The choices for the future should be left to the General Assembly. The Chair should draft a factual report.
• The Chairman has asked for an end to interventions, so that he can prepare a report.
• Brazil speaks. Brazil wants their proposal on transfer of technology included in the factual report. A factual report should state the "huge support" for the development agenda that was obtained through the IIM process.
• There is now a 20 minute meeting where the chair figures out what to do.

Drumroll, please.

• The final decision: A report consisting of nothing but the reports on the first two meetings, the minutes of the third meeting, and a cover note from the Chairman. This session (IIM/3) would be resumed in the first week of September for the purposes of adopting this report before the General Assembly meeting, which is the last week of September.