How Much Time is Necessary to Negotiate the Text of a Multilateral Agreement on Intellectual Property?

There is a negotiation in the WIPO SCCR over the work program on copyright limitations and exceptions for persons with disabilities. Some countries favor a negotiation on a binding treaty. The US government is asking that the SCCR set aside work on the treaty, and focus instead on a non-binding recommendation to address a limited set of issues relating to the import and export of works created under an exception. The US government asserts that treaties would take a very long time to negotiate, ratify and implement. Supporters of a treaty say that a non-binding recommendation dealing with a limited set of issues could well take almost as long to negotiate, but not have many benefits in terms of implementation.

This note looks at one narrow issue – how long does it take to actually negotiate the text of a treaty. There is no single answer, but there are many useful data points. In the treaties reported below, all of which were successful negotiations, the time to negotiate the text of the agreement generally took less than four years, and in many cases, less than two years.

Copyright and Patent Treaties, and the WTO TRIPS Agreement

1883. The Paris Convention
An International Congress on Industrial Property was convened at Paris in 1878, which invited governments to convene an international diplomatic conference to determine the basis of uniform legislation on industrial property. France agreed to prepare draft treaty and hosted an International Conference in Paris in 1880, which endorsed the draft as a basis for negotiation. A Diplomatic Conference adopted the Paris Convention for the Protection of Industrial Property in 1883. The negotiation on the text of the Convention took three years, after France distributed its draft.

1887. The Berne Convention
The Berne Convention for the Protection of Literary and Artistic Works was negotiated in successive conferences from 1884 to 1885. In 1886, the final text was agreed upon, and ratification started in 1887. The negotiations on the text of the first version of the Berne Convention took less than three years.

1961. The Rome Convention
After the Second World War, different committees of experts prepared drafts of conventions to protect broadcasting organizations. However, only in 1960, a committee of experts convened jointly by WIPO, UNESCO and the ILO drew up a draft , which was the basis for the deliberations in Rome, where a Diplomatic Conference agreed on the final text of the “International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations,” adopted on October 26, 1961.

1970. The Patent Cooperation Treaty (PCT)
To overcome the problems of territoriality in patent laws, in September 1966, the Paris Union undertook studies for a solution to reduce the duplication of the patent applications. After several meeting, a draft was prepared, which was adopted in June 1970 as the PCT, four years after the decision to develop a solution to the problem.

1971. The Appendix to the Berne
In 1971, the Berne Convention was amended, to include a new 3,800 word Appendix, which provided special provisions for developing countries. The negotiations on the text primarily took place from June 1969 to July 1971, about two years.

1971. The Geneva Convention for the Protection of Producers of Phonograms
The necessity of this specific convention was raised in May 1970 in the Preparatory Committee for the revision of the two major copyright conventions, and after less than 18 months, the “Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms” was concluded in Geneva in October 1971.

1974. The Brussels Convention on Programme-Carrying Signals Transmitted by Satellite
This convention was proposed to address the unauthorized use of signals transmitted by satellites. The text was based upon a draft prepared by three Committee of Experts between 1971 and 1973. The “Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite,” was concluded in Brussels in May 1974, less than three years after the first meetings of the Committee of Experts.

1993. The TRIPS Agreement
The most important and extensive multilateral agreement about intellectual property is the WTO TRIPS Agreement. In 1986, consensus was reached to include intellectual property as an element in the new World Trade Organization, but decisions about the scope of the agreement were only reached in April 1989. Negotiations on the text of the TRIPS then began, and were completed in December 1993, three years and a half years later.

The 1996 WIPO Internet Treaties
Negotiations on the text of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (WPPT) were concluded in December 1996, less than two years after negotiations on text began. The WCT came into force in March 2002, and WPPT came into force May 2002. However, the US congress passed the DMCA in October 1998, less than 2 years after the December 1996 Diplomatic Conference on the Treaty was concluded. The European Union only ratified the WCT and the WPPT in December 2009. But the WCT and the WPPT treaties were effectively implemented in 2001, by Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, about four a half years after the 1996 Diplomatic Conference.

2000. The Patent Law Treaty
It is not clear when this treaty started to be prepared, since WIPO proposed it in 1983 and a committee of experts worked in it between 1984 and 1990, with a more ambitious agenda including substantive matters of patent law. When work on the treaty stalled, attention shifted to the WTO, where the TRIPS was negotiated. A after the TRIPS was finished, the treaty was re-conceived as a less ambitious project focusing on procedural issues. The new initiative began in 1998, when WIPO created the Standing Committee on the Law of Patents, which negotiated the instrument that eventually became the “Patent Law Treaty,” adopted on June 1, 2000 at a Diplomatic Conference in Geneva.

Other Relevant negotiations

The Anti-Counterfeiting Trade Agreement (ACTA)
Negotiations on the text for an Anti-Counterfeiting Trade Agreement, known as ACTA, began in June 2008. The draft ACTA is an extensive agreement involving both criminal and civil enforcement of the seven categories of intellectual property in the TRIPS. According to USTR, they are expected to conclude this year.

2001. The Doha Declaration on TRIPS and Public Health
The 2001 Doha Declaration on TRIPS and Public Health was negotiated from February to November 2001.

2003. The 30 August 2003 Decision on Paragraph 6 of the Doha Declaration on TRIPS and Public Health
From December 2001 to August 30, 2003, the WTO negotiated an agreement to modify the obligations under the TRIPS agreement to allow the export of medicines manufactured under a compulsory license to countries without adequate manufacturing capacity. The main text of the agreement was finished in December 2002, but not agreed upon until August 30, 2003.

2007. The WIPO Development Agenda
A proposal for a WIPO Development Agenda was made in August 2004, and was considered for the first time at the September 2004 WIPO General Assembly. Negotiations on the text of the Development were concluded in June 2007, and approved during the 2007 WIPO General Assembly.

2008. The WHO Global Strategy on Public Health, Innovation and Intellectual Property
The negotiation on the substantive text of the 48 page WHO Global Strategy on Public Health, Innovation and Intellectual Property (WHA61.21) took place from May 2006 to May 2008. Final provisions on the plan of action were agreed in May 2009.

2006. UN Convention on the Rights of Persons with Disabilities
Also relevant may be the UN Convention on the Rights of Persons with Disabilities. The text of the Convention was negotiated during eight sessions of an Ad Hoc Committee of the General Assembly from 2002 to 2006.

1983. WIPO/UNESCO Model Provisions Concerning the Access by Handicapped Persons to the Works Protected by Copyright
In 1982, WIPO and UNESCO sponsored a Working Group on Access by the Visually and Auditory Handicapped to Material Reproducing Works Protected by Copyright. The Working Group met at UNESCO House, Paris, from October 25 to 27, 1982. On January 3, 1983, a report of the Working Group was published. (UNESCO/WIPO/WGH/I/3). In December 1983, the Executive Committee of the Berne Union and the Intergovernmental Committee of the Universal Copyright Convention decided, each on its own behalf, to ask states to provide comments on the "Model Provisions Concerning the Access by Handicapped Persons to the Works Protected by Copyright."

Negotiations on a WIPO treaty for copyright exceptions for persons with disabilities
A treaty was first proposed by WIPO and UNESCO expert Wanda Noel in 1985. At the November 2008 meeting of SCCR 17, the WBU presented a draft text for a treaty. In May 2009 at SCCR 18, Brazil, Ecuador and Paraguay formally tabled the WBU text as a possible basis for a negotiation on a binding instrument. In June 2010, the WIPO SCCR will consider a possible timeline to work on the treaty, with the aim of scheduling a diplomatic conference in early 2012.

Table 1: Time to complete negotiations on the text of an agreement

Less than one year 1983 WIPO/UNESCO model law for copyright exceptions for disabilities
2001 WTO Doha Declaration on TRIPS and Public Health
One to two years 1961 Rome Convention
1971 Appendix to the Berne
1971 Geneva Convention
1996 WCT and WPPT
2000 PLT
the 30 August 2003 WTO decision on the implementation of Paragraph 6 of the Doha Declaration on TRIPS and Public Health
2008 WHO Global Strategy on Public Health, Innovation and Intellectual Property
Two to three years 1983 Paris Convention
1887 Berne Convention
1974 Brussels Convention
2007 WIPO Development Agenda
Three to four years 1970 PCT
1993 TRIPS Agreement
2006 UN Connvetion on the Rights of Persons with Disabilities

If not today, when?

"What is not started today is never finished tomorrow." Johann Wolfgang von Goethe

James Love, Director, KEI