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UNESCO intergovernmental session II, Fifth Day: Friday, February 4, 2005

Summary: In the morning, first, the chair reported that last night's drafting committee meeting was long and cumbersome, with very little progress made. Next, the legal advisor responded to yesterday's concerns about interference with other international law by drawing delegates' attention to the formal comments submitted by WTO, WIPO, and UNCTAD. Then, NGO lobbying for time partly paid off, with the chair announcing that we would have 10 minutes to speak at the end of the discussion on article 7 (which includes some unfortunate IP language about an undefined 'piracy.')

Discussion on article 7 ('obligation to promote the diversity of cultural expressions') continued where it left off yesterday, with states expressing a wide range of opinions - especially on 7.2(b), the piracy clause we're worried about. Several countries want to keep the clause, keep it but delete the reference to piracy, or delete it altogether. At this point, the second option seems like it might be the most likely, but it's hard to tell. There seemed to be very strong support, and no opposition, to the Brasilian proposal to add a clause (g), which reads: "protection against unwarranted appropriation of traditional and popular cultural contents and expressions, with particular regard to preventing the granting of invalid intellectual property rights."

In the afternoon, discussion focused on article 8 (obligation to protect vulnerable forms of cultural expression) with arguments falling along three main lines: this article is important, this article shouldn't create new obligations on states, this article is important but poorly written and its point can be made elsewhere.

At the end of the day, there was an agreement that the plenary would be suspended until Monday in order to allow the drafting group to work all weekend. This was probably wise, since the drafting group has been proceeding quite slowly. In fact, when we hear the report on Monday about what the drafting group has accomplished, we will have a much better sense of whether it will be possible to emerge with a new draft of the convention by the 12th.


Blow by blow:

The day opened as always with the Chair's report on last night's drafting committee.

He said that the process was long, cumbersome, and little progress was made. The drafting committee is supposed to follow the direction of the plenary, is supposed to follow the order and rulings of the chairman, and if there is serious disagreement, the matter should be referred back to the plenary. Last night the drafting group spent two hours discussing words and concepts never raised in the plenary. Brackets can be used for words and phrases that are substantial, not on grammar. If a concept requires further discussion by plenary, footnotes can be used.

The next item was a response by UNESCO's legal advisor to a point raised by India. India basically asked whether legal adviser should be joining the debate when suggestions might conflict with other bodies of international law. The adviser responded that this forum is supposed to be for the member states to debate and form the text. His role is to be available. He pointed out that, with regard to the question of conflict, WTO, WIPO, and UNCTAD have all submitted formal comments that member states should read.

Chair then announced that NGOs would have 10 minutes at the end of Article 7, which we could organize as we like. [It should be noted that this didn't come from the generosity of the chair, but from hard NGO lobbying since the previous day with friendly governments for them to raise the point in the Bureau meeting. Also, this was not a commitment to NGO intervention at the end of each article discussion, but only on Article 7.]

The discussion of article 7 then resumed, starting with the chair's summary of what had been said so far.

Chair said that yesterday we heard 12 countries on article 7. Chair has not been able to identify the trends or the reasoning behind it, and asked for a shift in delgates' interventions from simple reading out of their preference for one option or the other to articulation of the reasoning behind the choice.

Mexico: thinks that there will be debate over artists livelihood here. They support India on 7.2(b) (this was the proposal to keep the IP language but delete the mention of piracy.) They support the new proposal 4, on unwarranted appropriation of traditional and indigenous knowledge by invalid IP.

Indonesia: delete para 1(a). Delete 7.2(b) (IP & piracy) on the grounds that it should be discussed elsewhere, and with respect for countries that are trying to make a new treaty on the protection of traditional knowledge and indigenous IP.

Ecuador : interested in Benin's proposal to allow those who register IP in their national territory to receive recognition in all other countries. They like the original on 72(b) but want to add the words counterfeit, imitation, to piracy (!) Support paragraph g of new proposals, to protect traditional, indigenous and popular cutlural expressions. This last is good but we need to talk with Ecuador about their position on IPRs!

Egypt: thinks this article is one of the main articles, a core. Said that those under occupation should get special consideration - this was interesting, as it was the first mention of 'those under occupation' and would be really relevant in the case of the looting of Iraq's museums, for example (see the Paper Tiger TV short on the destruction of Iraqi cultural heritage, part of the 'Shocking and Aweful' series. I'm not writing this while online, try googling "Paper Tiger TV Shocking and Aweful"). They want to add reference to the marginalized, disabled, poor, people under occupation, to para 1, "states parties shall guarantee in their territory an enabling environment for all people." This sounds pretty progressive, but they also want to add a line in 71(b) about "not contradict the essential moral values of the society." Yikes. On 7.2 they favor original text. Delete (a), on (b) use a definition that "IP rights are fully respected and enforced according to existing international instruments, in particular through establishing and reinforcing measures against piracy and counterfeiting."

Argentina suggested deleting 2b on IP, and supported the new proposal on indigenous knowledge.

Peru spoke but I missed their intervention.

Barbados: wants inclusion of the reference to minorities and indigenous peoples. 7.2(a), they are ready to listen to drafting committee on best phrasing of the paragraph. 7.2(b), they think needs to be 'tightened up.'

Japan: thinks the paragraph is so problematic that they're not even sure where to start. Has a fundamental question about the purpose of the article, and what kind of obligation it will impose on states parties. Wonders whether the article intends to impose new obligations on states, in addition to the fundamental freedoms in democratic societies. Thinks that the problem for developing countries is not that states don't want to provide opportunities to their nationals, but that they don't have sufficient means to do so. So this convention should address that problem, not create new obligations. Wonders what the legal meaning would be of mentioning IP in 7.2(b). They have distributed a new proposal in written form.

China: Notes that several delegations, including India, Australia, and the United States, have reservations about 7.1, since it means binding commitments that developing countries don't have means to implement. Join Egypt with suggestion to delete article 7.1, a and b. On 7.2, they suggest to add 'in conformity with existing domestic laws.' 7.2(a) in the original, which would protect the benefits of artists and creators but doesn't protect the local and indigenous communities. Want to add a clause 'members of minorities and indigenous people would be fundamentally recognized.' 7.2(b), they propose to delete, because it seems that this item is more reserving than other international instruments. This is good news, especially in their rationale; we weren't sure whether China would support the piracy clause or not.

Bolivia: supports inclusion of 'communities' and groups, not just individuals, in 7.1. Wants to mention minorities and indigenous peoples. They support option two of the IP clause, which does not include the piracy language.
They support (g), the proposal of Brazil on indigenous groups.

Uruguay supports deleting 72(b), but could live with deleting piracy clause.

Venezuela thinks that 'piracy' should be replaced with 'illicit use.' Is fine with keeping IP clauses in. We're going to work on them with regard to how to best balance the IP language.

Canada, happily, suggested deleting the IP clause.

I didn't record all the rest of the interventions because at this point I was informed that I'd have a chance to speak on Article 7 on behalf of the CRIS campaign, so I was tightening up the written statement on balanced IP language. The text of the statement I read is available at www.mediatrademonitor.org.

The governments finished and 3 NGOs spoke, CRIS intervention was the second. Immediately after that, the International Publisher's Association spoke, and they of course made an impassioned plea for the strongest possible IP language. The chair cracked a joke that CRIS and the IPA should get together and try to work out a common NGO position.

The chair summarized the discussion as follows:
The plenary is telling the drafting group several things, including
-How can we be inclusive in discussing an environment where creativity can flourish?
-There are some categories where more actions must be taken (indigenous rights especially)
-We need caution in our approach to IP
-There is a lot of support for the Brasilian proposal (g), which reads:
"protection against unwarranted appropriation of traditional and popular cultural contents and expressions, with particular regard to preventing the granting of invalid intellectual property rights."

He said that he needed to spend lunch thinking about the rest of the interventions, and that he'd try to give more concrete direction in the afternoon, since we would need to give a mandate to the drafting committee.

At this point Egypt asked for more computers in the room that the delegates have access to downstairs (there are only two desktops for a couple hundred delegates). The chair cracked that he couldn't provide laptops for everyone. Actually it's interesting, there's really poor technological infrastructure in UNESCO for a situation like these negotiations - there's no wireless in the building, only a couple power plugs in the back of the room even if delegates did bring laptops, just the two computers and one printer in the downstairs room. There are two photocopiers but you have to go through the secretariat to have someone else photocopy things for you. They have two projectors that they only started using to put up the text of the language under discussion after repeated energetic interventions by Yemen to do so. And they only put up the text from the document that came from the drafting committee. Ideally each delegation would be able to put up text it was suggesting on the screen for all to read. To top it all off, of course they're using Microsoft :P Actually try googling "UNESCO microsoft partnership" and you should see some interesting debates about a recent deal, with Gates trying to get his bloated foot deeper down the throat of the developing countries.

Discussion on Article 7 closed, and turned to Article 8, on the "obligation to protect vulnerable forms of cultural expression."

The debate here is going to be between some states, (including Australia, Brazil, others) that are worried that this clause will create new obligations that limit the sovereign rights of states, and those (Haiti, Venezuela, others) arguing that it's at the heart of the convention.

Haiti insisted that the concept behind article 8 is crucial, although they agree that as written it's weak. They would agree that it be deleted, but only on the condition that the point it contains be included in the section on international cooperation.

Indonesia would delete it (of course, as they are trying to suppress internal minority population), while Venezuela made a strong intervention on behalf of retaining it. They said that 'cultures aren't just 'becoming vulnerable' according to some strange, mysterious reason. It's because of asymmetry in political, social, and economic power; social injustice.' So they support it.

The Congo also had a powerful intervention and pointed out that in many cases, states themselves are often responsible for creating the vulnerable situation. Cultural diversity is threatened by state actions and state policies. So the measures described in article 8 should be strengthened.

Japan joined those states arguing that the basic idea behind this clause is good, but the formulation is inadequate.

At this point, the plenary broke for lunch.

In the afternoon, discussion on article 8 continued, with arguments falling along the same main two lines: this article is important, this article shouldn't create new obligations on states, this article is important but poorly written and its point can be made elsewhere.

There was an agreement that the plenary would be suspended until Monday in order to allow the drafting group to work all weekend. This was probably wise, since the drafting group has been proceeding quite slowly. In fact, when we hear the report on Monday about what the drafting group has accomplished, we will have a much better sense of whether it will be possible to emerge with a new draft of the convention by the 12th.
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