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TWN Info Service
on Intellectual Property Issues (Sept08/01) Geneva, 17 Sep (Sangeeta Shashikant) -- The Latin American and Caribbean countries in the World Intellectual Property Organisation (WIPO) have proposed that adopted Recommendation No. 45 of the WIPO Development Agenda be the basis for discussion at the next session of WIPO's Advisory Committee on Enforcement (ACE), planned for the first half of 2009. Recommendation No. 45 states: "To 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', in accordance with Article 7 of the TRIPS Agreement." This is timely, given the current trend of "IP maximalists" working in various fora towards higher standards of IP protection and enforcement. The
Group of Latin America and the Caribbean (GRULAC)'s proposal is one
of three proposals received by the WIPO Secretariat on topics to be
discussed at the next ACE session, which is planned for the first half
of 2009. The other proposals are from Group B (composed of industrialized
countries) and the Regional Group of Central European and The ACE, established in September 2002, has a mandate which excludes norm setting and is limited to technical assistance and coordination, in particular, coordinating with certain organizations and the private sector to combat counterfeiting and piracy activities; public education; assistance; coordination to undertake national and regional training programs for all relevant stakeholders; and exchange of information on enforcement issues through the establishment of an electronic forum. Thus far, the ACE has met four times. The Fourth Session of the ACE, which took place from 1-2 November 2007, could not agree on the topic to be considered by the 5th ACE session although it heard a number of proposals, including a proposal on bio-piracy. In
the absence of an agreed topic to be considered at the 5th session,
the Chair, Dr. Hassan El-Bradawy, Assistant Minister of Justice for
Parliamentary Affairs, The Chair's Conclusions (WIPO/ACE/4/10), which was adopted by the 4th ACE session, also noted the recommendation that "the Secretariat take into consideration suggestions made by Member states on the list of speakers." The WIPO General Assembly begins next Monday, but the discussion topics for the 5th ACE session remains undecided. According to sources, a regional coordinators' meeting was held in WIPO last Friday, and regional groups have been asked to consult and to show preference for one of the topics by 19th September. Group B, in its proposal for a topic, states that it "continues to welcome the topic suggested by WIPO Secretariat as a most appropriate one, i. e. "Coordination and cooperation related to IP crimes via the internet" -- (WIPO/ACE/4/2 par. 21). The proposal suggests other topics to be considered: * administrative cooperation and information exchange at national, regional and international levels, among public authorities; * online trading of counterfeit and pirated goods; * education and awareness on the importance of legitimate use of IP; * involvement of the private sector in capacity building work; * contribution of rightholders in enforcement; * effectiveness of the judiciary in criminal and civil proceedings; * health and safety concerns related to counterfeiting in the area of medical products. On the procedure for selecting future topics, Group B proposes that, "after the submission of proposals in advance of the Committee, Members aim at reaching consensus, failing which the Chair engages in consultations with regional coordinators about these proposals, out of which the Chair selects the final topics for the agenda of the next meeting - presupposing that these topics are of relevance to enforcement issues." It adds that "the agenda for each meeting should be determined specifically for that particular meeting." Except
for topics on education and awareness as well as effectiveness of the
judiciary in criminal and civil proceedings, the Regional Group of Central
European and GRULAC proposed recommendation No. 45 of the adopted Development Agenda which refers to Article 7 (pertaining to "Objectives") of the TRIPS Agreement as a topic for discussion for the 5th ACE session. According to sources, the WIPO Secretariat has mentioned that the GRULAC proposal is difficult to implement. However, the GRULAC proposal appears most relevant and timely. This is because of the increase in regional trade agreements containing provisions on enforcement that go beyond the TRIPS Agreement, and because several international agencies and fora -- for example, the World Customs Organisation (WCO), World Health Organisation (WHO), and Anti-Counterfeiting Trade Agreement (ACTA) -- are attempting to set standards on enforcement. There is a major campaign by developed countries to push for adoption of standards on counterfeiting and piracy, supported by institutions such as WIPO, WCO and WHO. Thus far, the ACE sessions and presenters invited during the sessions have been focused on issues relevant to the rights holders. For example, the 2nd ACE Session focused on the role of the judiciary, quasi-judicial authorities and prosecution in enforcement activities, including problems related thereto such as litigation cost; the 3rd Session on the issue of education and awareness building, including training, in all areas of intellectual property enforcement; and the 4th session on cooperation and coordination at the international, regional and national levels in the field of the enforcement of IP rights with a particular focus on effective criminal remedies. The proposal by GRULAC will enable stocktaking of the current situation on IP enforcement, and discussions on whether the current trend of IP enforcement works for broader societal interests, addresses development-oriented concerns, promotes technology innovation, transfer and dissemination of technology. The topic also allows discussions on whether the current IP trend is "to the mutual advantage of producers and users of technological knowledge", and is "conducive to social and economic welfare, and to a balance of rights and obligations". Issues
relevant to Group B and the Central European and Following selection of the topic, regional groups should also pay attention to the crafting of the draft programme for the next ACE, as well as the speakers that will be invited to trigger discussion. Procedure for selecting future topics should be "inclusive". Sources also say that informal discussions on the topic are likely to continue after the WIPO General Assembly (GA). Before the WIPO GA is a "Report on the Work of the Advisory Committee on Enforcement (ACE) and the Enforcement of Intellectual Property Rights" prepared by the Secretariat, which the GA is asked to take note of. The report particularly refers to the joint initiative of "Global Congress on Combating Counterfeiting and Piracy" by WIPO, the International Criminal Police Organisation (Interpol) and the World Customs Organisation (WCO), with the support and cooperation of the International Chamber of Commerce (ICC), the International Trademark Association (INTA) and the International Security Management Association (ISMA). The Report states that under the banner of Rising to the Challenges, "discussions focused on selected topics including free trade zones and transshipment; health and safety risks; building anti-counterfeiting capacity; raising awareness; and sale of counterfeit and pirated products via the internet". It adds that "The crucial role of WIPO in the protection and enforcement of IP rights, its commitment to foster the strategic partnership with the private sector, its support of the international efforts to propose and elaborate on solutions to the problems of counterfeiting and piracy were underlined and appreciated in the presentations and debates". For developing countries, the agenda item on enforcement in the General Assembly is an opportune time to raise concerns with regard to the current "IP maximalist" trend on enforcement adopted by developed countries. +
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