UNESCO intergovernmental session II, Day 11: Thursday, February 10, 2005

Submitted by Sasha Costanza-Chock on February 10, 2005.English

Summary: In the morning, the drafting committee met and discussed article 7, especially the clause "States Parties shall ensure IPRs are fully respected and enforced according to existing international instruments to which States are parties, particularly through the development or strengthening of measures against piracy." Despite the recommendations of the plenary, which tended towards either deleting the intellectual property language or at least eliminating the clause about 'development or strengthening of measures against piracy,' the USA - with some support from Ecuador (?!) did not allow the deletion of the text or even a bracket on the whole clause. Instead, after strenuous effort by Brazil, 'IP rights,' 'fully respect and enforce' and 'or strengthening' were bracketed, while a footnote was added to 'piracy' indicating that it was problematic and undefined. Meanwhile, the Brazilian proposal 7.4, "States Parties undertake to ensure in their territory protection against unwarranted appropriation of traditional and popular cultural contents and expressions, with particular regard to preventing the granting of invalid intellectual property rights," was shot through with brackets by the chair and the USA. This was despite near unanimous approval of the original language during the earlier discussion of this clause in plenary. In addition, the USA added a footnote that it should be discussed in other fora, which would be a fine point except they refused to allow a similar footnote on the piracy clause.

The plenary, starting at 11:00, was supposed to discuss definitions of protection and goods and services. However, after a discussion on the definition of protection that was kicked off by the US proposing new language that would gut the potential strength of the convention, despite near consensus yesterday on a much stronger version of the definition, these definitions were sent to an afternoon working group. The discussion of 'vulnerability' also remained in working group, as did the discussion of the clause on federal states. Working groups met from 2-4, followed by drafting committee. The chair announced that, tomorrow, we'll quickly discuss the federal clause, the EU clause, articles 20-24, article 15, and the reports from the various working groups. Then we'll get the report from the chairperson of the drafting committee. Then we'll get a report from the rapporteur of the whole conference. It was a general wish that we should end the sessions tomorrow evening, meaning no meeting on Saturday.

All this means that the work of the intergovernmental will be ending without resolution of any of the key debates. Most likely, there will be a revised draft that will be prepared by early March in time for the 7 month deadline, but a draft full of brackets and footnotes. To some degree, it will reflect progress on consolidating options from the current draft and identifying with brackets the most important sticking points. Then, there will have to be another intergovernmental session (in May?) to try and resolve disputes before the fall general assembly. However, from here on we can expect the transparency to get even worse than it has been, and we are worried that the opportunities for NGO intervention will be even further reduced (or eliminated) during the next, important, drafting phase.

Blow by blow:

Drafting committee on article 7.2(b)

States Parties shall ensure IPRs are fully respected and enforced according to existing international instruments to which States are parties, particularly through the development or strengthening of measures against piracy.

At first, the full text was bracketed at Brasil's insistence, then unbracketed at USA's insistence.

A footnote was added:
Consistency in references to the Intellectual Property Rights in the Preamble and in the text of the Convention should be ensured in the process, if maintained.

USA: we strongly support the inclusion of this in the final text. Procedurally, we've been denied the opportunity to bracket full texts before, so we wonder why we are doing this now.

Brasil: There was guidance from plenary to either delete the whole text, or keep it. So bracketing the text is not inconsistent with guidance from plenary. If people want, I can bracket parts of the text and offer new text. But I think this will drag out the process.

Rapporteur: instructions were, with regard to 7.2.b, a number of delegates called for the deletion of the article, while a number of others called for the importance of its inclusion. Rapporteur thinks that a footnote is the way to go, but placing the entire text in brackets is not the way to go.

Brazil: in that case, bracket intellectual property rights, bracket fully respected and enforced, another bracket on 'or strengthening.' Piracy has no definition in this instrument, so we'd like to know what it means in this context. We have to bracket the original text, not a footnote.

Chair: OK, we will put brackets in the original text and also a footnote that many are of the opinion that this should not be there. But not the full text.

Ecuador: if we put in brackets everything that Brasil has suggested, then we won't be left with much.

Chair: we'll go ahead with this version.

7.4 "States Parties undertake to ensure in their territory protection against unwarranted appropriation of traditional and popular [cultural contents and expressions], with particular regard to preventing the granting of invalid intellectual property rights."

Brasil: this is worth mentioning here, there are examples in several countries, it's an ongoing problem.

Chair (who is head of SCCR): suggests putting the last part in square brackets.

Ecuador: Chairman, I'm very pleased to support the proposal from Brasil. In many countries, particularly developing ones, there have indeed been events prejudicial to traditional cultural contents and expressions, but is was stated I think that we are not to talk in this text about IPR.

Chair: with great certainty, this element will be subject for further consideration later.

India: I think this version is more appropriate to retain, and perhaps we have to find a more appropriate word for 'invalid.'

Chair: Can anyone withdraw the request for the floor and join the conclusion.

China: My delegation would support the proposal from the Brasilians. We think it's an important clause for developing countries.

USA: As a threshold matter I would note that this is under extensive discussion at WIPO, which is the appropriate forum. The phrase 'unwarranted appropriate' is filled with meaning under debate elsewhere, and that phrase ought to be in brackets. Phrasing it this way is problematic. Bracket 'protection against unwarranted appropriation.'

Chair: OK bracket added, and footnote added. The subject matter is under extensive consideration in other fora.

Brasil: if there was no footnote in the first one, there should be no footnote here.

USA: They are different. The first is well known principles, the second is introducing confusion. We affirm existing rights and obligations, UNESCO is not the place to introduce new rights and obligations.

Chair: we should not preclude development here. There is a footnote, that will be my ruling.

Madagascar: willing to abide by this.

Japan: share fully the spirit behind this article, but this is being discussed in WIPO, so I can't go along with this footnote.

India: if you maintain this footnote, the same footnote should be added in 7.3 also.

Chair: [slamming gavel and ramrodding it through] this is a new proposal that is being discussed elsewhere, the 7.2 is just existing rights. The footnote stays on 7.4 and won't be added to 7.2.

Drafting committee meeting ends.

Plenary begins at 11:00. Today plenary is supposed to discuss goods and services and protection definition. Then, examination of articles 20 to 24.

The working group was not able to complete the work, but they do have a draft of article 14.

South Africa (chair of the working group): We are presenting article 14, on preferential treatment for developing countries. The text as it appears in front of us is taken largely from article 17 in our original text. There's a footnote that some states want a reference to domestic law included in the text.

Brasil: we feel that in at least one part of this treaty, preferential treatment for developing countries should be referred to without limitation.

Canada: In the context of this article, a reference to domestic law is simply clarity regarding what this obligation would mean. It would have to be consistent with our domestic law. I appreciate the footnote, but we would still prefer to have it in the text.

Peru: We know that there have been intense discussions in the working group. However we think it remains important to mention the international obligations. In accordance with international obligations, we support.

USA: The US considers cultural exchanges to be particularly important. This was a comprimise text, which had give and take on both sides. We seek the retention of the international obligations paragraph.

Japan: we support the intervention made by Canada. Japan prefers a reference to domestic law in the text. The language of the current text is acceptable with us, it's important to keep the phrase on international obligations.

Mexico: We'd like to leave it the way it is, especially the last phrase that refers to international obligations.

Uruguay: we also participated in the elaboration of this article. We think like Mexico, Brasil, and others that it's balanced and should remain in its original form.

Chair: there seems to be general agreement on the proposal of the working group. We'll refer it to the drafting committee. Now we return to the debate on protection and promotion. Before we do that, Saudi Arabia made a point of order to change the objectives. I refer that to the drafting committee.

Saudi Arabia: we think it's proper to look at it in the plenary, and that is the wish of the concerned countries. I discussed this with the president of the drafting committee, who feels the same way.

Chair: the Bureau will discuss the matter and it will come back to Plenary in due course. Now protection.

USA: Good morning. Protect is overly broad in its sweep. As we states yesterday, the english dictionary has two meanings of protect: "to keep from being damaged or injured." This in our view is an appropriate connotation for fostering cultural diversity and strengthening at risk cultures. The other meaning is "to help domestic industry with tariffs or quotas on imported goods." This latter definition would unhelpfully bring trade, investment, and IP issues into these negotiations, and thereby confuse interpretation of the convention's text and intent. Our view is that trade, investment, and IPR issues belong not at UNESCO but at the WTO and at WIPO. The ambiguity and imprecise intent of the term 'protection' has been raised repeatedly, yesterday, by Mexico and Ecuador. Each delegate here must decide: are we here to negotiate a document celebrating cultural diversity in its fullest sense, or are we here to mask trade and commercial goals under the cover of cultural diversity. The USA is here to negotiate a convention that will truly strengthen cultural diversity and at-risk cultures. For this reason, we think the term 'preserve' and 'preservation' would more accurately convey the intent of this convention, without sweeping in unintended trade and IPR complications. We acknowledge that protracted further debate may not be on anyone's interest. Therefore, in a broad spirit of comprimise, we are prepared to build upon your paper and the astute observation made yesterday by Senegal that it is equally important to make clear what protection is, and what it is not. We propose the following definitions:

Your definition of what protection is, which we would supplement with what protection is not.

"For purposes of this convention, protection means the adoption of measures aimed at the preservation and enhancement of the diversity of cultural expressions.
This meaning and the use of the term protection shall not enlarge, diminish, or otherwise affect rights, obligations, or responsibilities of the States with respect to trade, investment, or intellectual property rights."

In this way we will avoid the unhelpful ambiguity of the term 'protect.' This will also facilitate eventual adoption and ratification of the convention by the international community.

Chair: what about the term 'safeguard?'

USA: that was an inadvertent omission. Wait, sorry, that was deliberate.
(Other USA speaker): we think that safeguard also might introduce confusion.

Chair: we had numerous interventions yesterday supporting the term 'protect,' in the sense it's been used in other UNESCO conventions, and the mandate that was given to us by the General Conference. Are there any respondents?

St. Lucia: I'd like to thank our colleagues from the US, but before we respond, we've got to see it distributed in writing.

Brazil: Actually I have a point of order. I'd like to react to your text. We'd like to see it in writing, translated into French. In my opinion, we shouldn't take the formulation of one country and project it on the screen.

Chair: problem is, if we send it to drafting committee, they won't be drafting, they'll be negotiating. What is the opinion of the plenary?

Brazil: I understand the need to ventilate the whole question. But I attract your attention to the fact that several other proposals were made, with clear language. I insist on all the proposals being considered instead of the proposal of one country being projected on the screen.

Chair: I agree. We can't just discuss one. But how to get movement. The majority have clearly expressed the retention of protection, with a definition largely along the lines of paragraph 4 (brasilian text).

Colombia: This is a moment when we get to the absence of the discussion ... the proposal of Senegal from yesterday will help us figure out what is the mandate that we will have. There needs to be a sense of direction from the title and from this provision.

*At this point the definition from Brazil was placed on screen alongside the US proposal

Chair: This is not a convention on cultural diversity. To assist the debate, it's on cultural expression. There is a relationship between the culture and the goods that come out of it, and this has a trade aspect. The cultural aspect should not be seen simply as a cultural matter, but associated to goods, which we'll see when we get to goods and services. The discussion then turns on whether the last clause, the proviso, will be included. It will be helpful if there have been informal discussions on this. It's late in the day to set up a small working group. Lament for the recent floods in Venezuela.

Venezuela: Thank you for the lament. We think the proposal from USA is interesting and an attempt to come to consensus. However, the concrete proposal is not technically acceptable. In the definitions, we shouldn't include restrictions. We shouldn't include limitations in the definitions. We think this can be done in Article 19, for example where there is already a mention of intellectual property. So we support the definition proposed by Brasil.

Ecuador: We're worried about lack of clarity. Worried about leaving doors open, so that tomorrow, the language can be adopted for another reason.

New Zealand: As you've identified, there are two contentious issues the plenary is grappling with. One is with cultural goods and services. Perhaps if we grapple with that one, it will help us with the discussion of 'protect.'

Zimbabwe: There is need to really look at the implications of that caveat. More so because it really restricts application of this convention. Reducing everything to trade, IPR, investment, where as the convention should be wider.

Mexico: The term protection should be carefully examined. We should also consider the resolution of the general conference on this theme. We have a proposal: to take up the President's suggestion, that a working group take up the issue and present results to the plenary.

Chair: can we have an informal working group to come back to us tomorrow? I'm not curtailing the debate. Korea and Costa Rica as joint chairs, to convene a working group. I think that's a sensible way of dealing with it. This can start at lunchtime today. But in the end, goods and services are inextricably bound up with the wider meaning of protect. Working group on international cooperation has not been able to finish the work on vulnerability, and on the proposal from Haiti. So now we turn to goods and services.

Luxembourg: Describes the process by which a new definition of cultural expressions was arrived at. We don't want to get involved in another negotiation. The concept we're trying to develop should cover both activities that have economic value, as well as those that do not necessarily have economic value. There was broad agreement on this. We all agreed that coming up with a list would not be workable. Several delegations referred to the consequences of defining goods and services and how that would have an impact on trade. Several delegations felt that cultural goods and services had a trade connotation, which is stronger in English than in other languages. I hope that having set forth these common understandings from working group will help us in this plenary.

Chair: In consultation with bureau, we feel that the working group should continue, and provide us with a text that gives direction. Apart from your oral report, we want a text. So 3 working groups continue: int'l cooperation, protection, and goods and services will meet from 1:00 to 4:00pm. At that time we'll have a written report, and possibly get some clarity.

Brasil: point of order. I appreciate the momentum you're trying to gather. But if we have three groups, concerning the proximity between the various concepts, and the fact that some delegations are small, I propose that cultural goods and services and IP be dealt with in the same group.

Chair: that's a proposal, not a point of order.

India: I want to support Brasil on this, and also that the two groups should meet in a sequential manner, because otherwise those of us who are small delegations will not be able to participate in both.

USA: We support the thrust of these suggestions by Brasil and India. We're flexible, we could see either protection and goods and services meeting together, we agree there needs to be coordination between those two groups.

Chair: The drafting committee will not meet at the same time as the plenary. But as far as working groups are concerned, they're meant to be small working groups. The report of the working group comes to the plenary. If we have a rule that only one working group can meet, then we're constraining ourselves, especially if we want the work to advance. We'll merge cultural goods and services and protection, but be careful that it doesn't degenerate into a mass rally. On vulnerability and int'l cooperation will meet separately. But there must be written reports available. Remember, we're circulating the results of the drafting committee. They're full of brackets, footnotes, reservations. There's no reason why you shouldn't have brackets and footnotes, if they move the discussion forward.

Korea: I wanted to speak in favor of the merging of the working groups, so thanks very much.

USA: Can you remind us what impact this will have on the drafting committee?

Chair: Drafting will meet at 4pm. That gives the working groups 3 hours. Now we come to item 4, oh wait, Brasil.

Brasil: Could you be flexible as to leave to the delegations to decide what time to meet, since we will need to have lunch?

Chair: Fine, but drafting committee will have to meet at 4.

USA: In light of the scheduling issues, shouldn't we just adjourn now for lunch?

Chair: Fine, on one condition - it's my job to report to Sec General. We said there'd be a small working group on the federal clause. I've provided you with text from the doping in sport and cultural heritage conventions. We have to resolve that. If drafting committee can't come to agreement, we have these texts in front of us. Then we have the EU clause, that they're supposed to bring to us in concrete form. Otherwise, the EU will collapse (laughter). We now adjourn, and tomorrow morning we'll discuss articles 20-24 plus article 15. These are the institutional arrangements.

Senegal: can you clarify?

Chair clarifies: We'll quickly discuss tomorrow the federal clause, EU clause, articles 20-24, and the reports from the working groups. It was general wish that we should end the sessions tomorrow evening. Tomorrow morning we'll receive the reports from the working group on the federal clause and EU clause. Then we'll have discussion on 20-24 and 15. Then we'll get the report from the chairperson of the drafting committee. Then we'll get a report from the rapporteur of the whole conference. Then the closure. Today, we adjourn to allow the working groups to work from now until 4pm. At 4pm, the drafting committee meets.

Saudi Arabia: we want the proposal to add something to 1(a) on the agenda tomorrow.

Chair: I used to have the Koran memorized by heart. The bureau will consider this.

Argentina: This is a very intensive program. What time do we start tomorrow.

Chair: we start at 10:00. Drafting committee meets at 4pm today. The plenary will meet at 10am tomorrow. Now announcements.

Announcements: Madame Stenou and other colleagues on the secretariat are trying to find room and translators. Working group on goods and services and protection will meet in this room, room 2, with interpretation. Group on vulnerability will meet in room 8. Canada should ask secretariat where the room will be to discuss federal clause. I would also indicate that the Latin American and Caribbean group will be meeting briefly at 2:30 in room 4. I would also add that the documents office now has the list of participants. The NGOs meeting will start just after this meeting, in room 4.