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September 25, 2006

I'd rather be in Texas . . .

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. . . but I'm in Geneva, Switzerland for the 42nd General Assemblies of the World Intellectual Property Organization (WIPO). This is the annual meeting where business is actually conducted and decisions are made, as opposed to other bodies which meet to discuss, debate, and make recommendations.

On the agenda this week are at least two very controversial items, both of which are slated to come up on Wednesday.

The first of these is the proposal for a WIPO Development Agenda, which I have covered extensively (and perhaps ad nauseam) on this blog. If you want to read about that, avail yourself of the blog search engine or the category index. I will of course cover developments on the proposed development agenda here this week.

By the way, I insist on referring to the development agenda as the "proposed" development agenda because that is the correct state of the issue. The question is WHETHER WIPO shall adopt a development agenda, and if so, what should it look like. I make this distinction because many of the proponents of the development agenda have always used language which suggests that a development agenda is a "done deal"--that there darn well is going to be a development agenda, and it is darn well going to be what we want it to be. But that is not the case. WIPO has never endorsed a development agenda. What WIPO has endorsed is a consideration of whether or not to implement a development agenda.

The second controversial item is the proposed Treaty for the Protection of the Rights of Broadcasting Organizations, or the Broadcast Treaty for short. I have not covered the Broadcast Treaty to a very great extent on this blog, but I plan to spend most of my efforts this week on the Broadcast Treaty.

I haven't taken a position on the Broadcast Treaty, but my thoughts on the Treaty will also be contained in later entries.

I'll explain the Treaty in a later entry, but for now, here is how things seem to be shaping up: Developing countries want the Treaty, and the U.S. wants the Treaty--no, wait, now the U.S. apparently does NOT want the Treaty.

The U.S. seems to be flipping its position on the Broadcast Treaty. From what I can tell, the U.S. delegation's concerns are legitimate, but could almost certainly be addressed through the process continuing, as opposed to the U.S. blowing up an 8-year process, which is the current rumor.

The U.S. concern seems to be some troubling language that is in the current draft of the Treaty, especially language on cultural diversity, including a specific link to the Convention on Cultural Diversity. Also, there is language that suggests mandatory exclusions and limitations, which is troublesome. The thought is that if this kind of language is in the Broadcast Treaty, it will become a template for all WIPO treaties and agreements, and will undermine the entire IP (or at least copyright) regime.

However, there is still opportunity to finesse the language of the Treaty, and in fact it's well understood that changes to the language will HAVE to be made, since right now the document consists of just about every bit of language that everyone wanted in the Treaty. As it stands, the language of the Treaty is obviously still in draft stage. So it seems to me that, if in fact creating these rights for broadcasters is a good thing, it's worth continuing to work on the language.

In fact, there is already a scheduled 2-day conference devoted to working through these specific language disagreements before the proposed diplomatic conference next year.

So, for me, right now the biggest issue of the General Assemblies is what the U.S. decides to do on the Broadcast Treaty. Does the U.S. value the protection of broadcast streams sufficiently to continue to work through the process, or has the U.S. decided to blow up the process by referring it back to a standing committee, which will likely be death to the Treaty?

I'll let you know.

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