Info Service on Intellectual Property Issues (Nov15/08)
Geneva, 27 November (K M Gopakumar) – The World Intellectual Property Organization’s Advisory Committee on Enforcement is to discuss legislative assistance in the area of intellectual property enforcement.
This decision was taken at the 10th meeting of the Advisory Committee on Enforcement (ACE) which met on 23-25 November at the WIPO Headquarters in Geneva.
[In 2002 the WIPO General Assembly established ACE with the mandate to carry out technical assistance and coordination in the area of intellectual property (IP) enforcement. Norm setting functions have been explicitly excluded from the mandate of the ACE. WIPO activities in the area of IP enforcement are to be carried out as per the WIPO Development Agenda recommendation #45.
It states: To approach IP enforcement in the context of broader societal interests and especially development-oriented concerns, with a view that “the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations”, in accordance with Article 7 of the TRIPS Agreement.]
According to the agreed work program the next session of the ACE “would have exchange of information in respect to WIPO’s legislative assistance”. The focus of this exchange of information is “drafting of national laws of enforcement that take into account the flexibilities, the level of development, the difference in legal tradition and the possible abuse of enforcement procedures-bearing in mind the broader societal interest and in accordance with member states priorities”.
Even though Group B (a developed countries’ grouping) proposed the deletion of words “the possible abuse of enforcement procedures” during the final plenary, they agreed during the break to informal consultations after seeing an overwhelming support from all groups to the ACE Chair’s proposal. Member States like Brazil asked Group B for an explanation of their suggestion i.e. removal of words “the possible abuse of enforcement procedures”. A developing country delegate told Third World Network (TWN) that Group B initially also objected to the word “flexibilities”.
TWN learned that the third version of the Chair’s text resulted in the consensus.
Apart from the above mentioned exchange of information ACE also agreed to the following exchanges of information for its next session:
· Exchange of information on national experience on awareness building activities and strategic campaigns as a means for building respect for IP among general public, especially the youth, in accordance with Member States educational or nay other priorities;
· Exchange of information on national experiences relating to institutional arrangements concerning IP enforcement policies and regimes, including mechanism to resolve IP disputes in a balanced holistic and effective manner;
· Exchange of success stories on capacity building and support from WIPO for training activities at National and Regional Levels for Agencies and National Officials in line with relevant Development Agenda Recommendations and the ACE mandate.
The above mentioned four activities for the future work of the ACE is a negotiated document based on the proposals from Member States. The WIPO Secretariat invited proposals for future work in April 2015. The Secretariat compiled the various proposals for the future work in document WIPO/ACE/10/3 Rev (http://www.wipo.int/edocs/mdocs/enforcement/en/wipo_ace_10/wipo_ace_10_3_rev.pdf).
It contains the following proposals:
· Review of awareness building activities as a means of building respect for intellectual property rights especially among school age children and students proposed by Group B;
· A discussion on how to intensify and improve WIPO’s Enforcement related technical assistance proposed by the Development Agenda Group;
· A Joint proposal from Poland, UK and USA on the specialisation of the judiciary and intellectual property courts;
· Capacity building and support from WIPO training activities at the national, regional and international levels for agencies and national officials with intellectual property enforcement expertise;
· Strategic programs and education campaigns aiming to build respect for IP especially for the youth and sharing experiences on the enforcement functions of national intellectual property offices proposed by the Philippines;
· Voluntary national presentations on IP enforcement regime, proposed by the EU and its Member States.
The agreed work program is a synthesis of proposals from Group B, the European Union and the Development Agenda Group (developing countries’ grouping).
Discussions during the 10th session of the ACE were organised in the form of panel discussions on two main themes. First, practices and operation of alternative dispute resolution systems in IP laws. This theme was further divided into two viz. alternative dispute resolution and domain name dispute resolution.
Secondly, preventive actions, measures or successful experiences to complement on-going enforcement measures with a view to reducing the size of the market for pirated or counterfeited goods. This second theme was further divided into the following sub-themes: awareness raising, educational tools for young people, preventing infringements in the online environment, national strategies to build respect for IP and strategic cooperation.
Most of the presentations were one-sided focusing on IP enforcement without looking at the development dimensions of IP. Often IP enforcement initiatives and campaigns presented during the ACE focused on propaganda content rather than empirical evidence. For instance, the paper explaining the industrial property enforcement experiences of the Spanish Patent and Trademark Office states: “the campaign uses messages and concrete evidence drawn from consumption of counterfeit product such as: job loss and business closures; the financing of activities of the mafia or organised criminals and the risk of the health and safety of consumers”. (http://www.wipo.int/edocs/mdocs/enforcement/en/wipo_ace_10/wipo_ace_10_9.pdf)
Similar views were expressed in another paper explaining the IP enforcement initiatives in Zambia. It lists the following negative impacts of piracy and counterfeit:
· A decrease in government tax revenue, which leads to cutbacks in national development programs and public sector employment. This slows economic growth and development since the ability of the government to build more schools, roads, hospitals and the like gets undermined;
· Legitimate businesses are forced out of the market due to the “uneven playing field”, which leads to unemployment;
· A threat to public health in form of high death toll because of traffic accidents caused by fake tires or break pads and because of illnesses such as cancer or skin diseases triggered by fake body lotions. Fake condoms and fake antiretroviral drugs escalate the spread of HIV/AIDS leading to death among consumers. Fake electrical appliances are responsible for fire accidents, which may be lethal;
· A threat to public security in that organized crime has moved into piracy and counterfeiting on a considerable scale. The prospect of high profit and low risk has given Pirates and counterfeiters an incentive to perpetrate their criminal activities. Criminal gangs have also taken advantage of the fact that counterfeiting may be perceived as a “victimless” crime. Worse still, the profits from counterfeiting and piracy may fund other kinds of organized crimes like terrorism, human trafficking, among others.
The ACE also had a brief discussion on the recent activities of WIPO in the filed of building respect for IP (WIPO/ACE/10/2: http://www.wipo.int/edocs/mdocs/mdocs/en/wipo_ace_10/wipo_ace_10_2.pdf)
The document provides a list of activities carried out in four areas viz. assistance to Member States in the form legislative advise, training and awareness raising, international coordination and cooperation, publications and training materials and WIPO awards program. The document also provided the executive summary of the evaluation report on the international cooperation on building respect for IP.
The evaluation report prepared by the oversight division of WIPO states: “Overall, the evaluation is of the opinion that the work of the Secretariat under Strategic Goal VI was efficient, effective and relevant and that the improvements made over the evaluation period (2010-2014) are sufficiently addressing the few challenges identified by the contributing Programs on an on going basis”. Therefore, “Based on the above conclusions and observations, there are no recommendations formulated for improvements which are specific to Program 17 or other contributing Programs”. (http://www.wipo.int/export/sites/www/about-wipo/en/oversight/iaod/evaluation/pdf/evaluation_strategic_goal_vi.pdf)
The evaluation report was prepared after consultation with a range of internal and external stakeholders dealing with various aspects of WIPO’s activities in the area of building respect to IP (IP enforcement). The external stakeholders were consulted on policy dialogue, capacity building and awareness raising, legislative assistance and international organisations and private sector.
No civil society organisations were consulted for the evaluation report, only business associations. Only the following IP offices or departments of developing country Member States were consulted for the preparation of the report: IP office of Ivory Coast, IP office of the Philippines on policy dialogue; IP office Namibia on capacity building and awareness creation; Intellectual Property Division, Ministry of Economic Affairs, Bhutan; and Department of Intellectual Property Rights, Ministry of Commerce, Cambodia on legislative advise.
Further, Judge Mr. Louis Harms from South Africa, who wrote WIPO’s Casebook on the Enforcement of Intellectual Property Rights was also consulted on capacity building and awareness creation. The IPR Business Partnership Group (Asia-Pacific) was consulted in the private sector category. The IPR Business Partnership is part of React, an anti-counterfeit initiative (http://www.react.org). According to React website, “The IPR Business Partnership is a forum for public-private sector debate, discussion and innovation with the express purpose of promoting public-private partnership as a key weapon in combating infringements of intellectual property rights.” Thus React does not represent the interest and concerns of developing country private sector.
Developing countries like Brazil raised questions on the small sample size of the evaluation report and also the lack of recommendations.
In response to a question from TWN regarding the non-availability of presentations by various resource people in the WIPO-organised IP enforcement training and awareness meeting the Secretariat replied that the presentations can be made available only with the permission or the consent of the resource persons.
On the opening day of the ACE on 23 November, Brazil on behalf of the Group of Latin America and the Caribbean (GRULAC) stated said that it isGRULAC’s common understanding that these future ACE activities must approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns, with a view that the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
India on behalf of the Asia Pacific Group stated that the “… group firmly believes that the protection and enforcement of IP rights should contribute to the promotion of technological innovation, at the same time we are of the view that it should also transfer and disseminate technology, to the mutual advantage of producers and users in a manner conducive to social and economic welfare, and a balance of rights and obligations”.
Regarding the training on IP enforcement the Group stated that, “Adequate training is necessary to ensure that relevant government institutions involved in IP enforcement can adequately determine on a case by case basis balance between the interest of the right holder and the public interest. We would like to seek more clarity from the Secretariat on how WIPO is providing adequate training to ensure this balance”.
Nigeria on behalf of the Africa Group stated that in order to address the larger societal needs like technology transfer the future work of the ACE should be balanced and take into consideration of recommendation 45 of the Development Agenda.
TWN stated, “A binary or black and white approach to IP enforcement is not advisable. Development concerns should be placed at the centre of IP enforcement. One sided enforcement initiatives can have adverse implications on the enjoyment of various Human Rights such as the right to health, right to education, right to food and right to science. The current approach on IP enforcement is like a James Bond movie and providing the narration of criminal mafia without looking at the development dimensions. There is no evidence to support such an approach”.+