At WIPO, A Complex Fight Against Counterfeiting, Piracy

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The fight against counterfeiting and piracy is at the heart of the World Intellectual Property Organization committee on enforcement, a non-negotiating body. In a meeting of the committee this week, delegates heard expert presentations on ways to tackle infringement and measure its impact. However, the smooth discussions were disrupted by considerations of the future work of the committee.

The 8th session of the WIPO Advisory Committee on Enforcement (ACE) took place from 19-20 December. [Update:] The chair’s draft summary is now available here [pdf].

At the outset of the meeting, WIPO Director General Francis Gurry said he was delighted to see the number of delegations present in the committee, and took it as an indication of the high importance of the subject matter.

“It is very difficult to find what role an international organisation can play in this area, because it is a very delicate area and the international community has been very good in the last 50 years at developing rules,” but a number of compliance mechanisms, in all fields, not just IP, are extremely limited, he said.

The future work of the committee, Gurry added, is an important opportunity to reflect and find creative solutions which will have a positive impact on the issue of enforcement.

Ambassador Thomas Fitschen of Germany was elected chair of the committee. He said that at the 7th session of the ACE (30 November – 1 December 2011), following a request from the Development Agenda Group (DAG), an agenda item on the contribution of the ACE to the implementation of the respective WIPO Development Agenda Recommendations was adopted.

Since the establishment in November of the draft agenda for this week’s meeting, informal consultations on this point were held and regional groups decided to proceed as last year, he said. The additional agenda on the contribution of the ACE to the implementation of the WIPO Development Agenda was adopted and was inserted just before the last item of the draft agenda.

Belgium on behalf of the Group B developed countries said the group welcomed the proposal for the additional agenda item, as long as it did not become a standing item of the committee.

Future Work: Group B, DAG Proposals Stored Till Next Session

At the end of each session of the ACE, the work for the next session of the committee is discussed. Four proposals were on the table for the future work of the committee.

These included two submitted this month: a proposal from Group B [pdf], calling for a study identifying the existence of initiatives targeted at school age students, to be presented at the 9th session of the committee; and a proposal from Korea [pdf], proposing that the WIPO secretariat conduct a study on practices and operation of alternative dispute resolution systems in IP areas, and whose results be presented at the 9th session.

Also on the table were two earlier proposals. This included one from Peru [pdf], submitted in December 2011 and updated for this session, calling for a study on the economic impact of piracy and counterfeiting, identifying preventive actions, measures and successful experiences, taking into account the different level of development of member states.

And the fourth proposal for future work was from the Development Agenda Group [pdf] dating from December 2010, requesting a discussion on how to intensify and improve WIPO’s enforcement-related technical assistance, including legislative assistance with a view to preventing the abuse of enforcement procedures such as “sham litigation,” and legislative assistance in drafting national laws of enforcement that take into account the use of flexibilities as well as the different socio-economic realities and the difference in the legal tradition of each country.

Group B said they had concerns about duplication of work in the DAG proposal, in particular on the legislative assistance as described in the proposal, because earlier work had been carried out by the WIPO Committee on Development and Intellectual Property.

Despite informal consultations on the last afternoon, delegates found it difficult to agree on the four proposals. The chair proposed that the four proposals be incorporated into the future work of the committee, but some countries, in particular Group B, disagreed, and proposed to withdraw its proposal if the DAG would withdraw its proposal, in an effort to reach consensus on the future work of the committee.

However, the DAG said Group B’s decision to withdraw its proposal was its sole responsibility and did not engage a decision by the DAG. Fitschen put a swift end to the polemics by declaring that the Korean and the Peruvian proposals, on which there was consensus, would be kept as the future work programme, and that further discussions would be undertaken at the next session on the Group B and the DAG proposals.

The Brazilian delegate told Intellectual Property Watch that it would have been preferable to the DAG to have kept the four proposals in the work programme.

No Norm-Setting in ACE

A WIPO source noted that “the ACE, unlike other WIPO standing committees, does not have any norm-setting mandate, but a technical assistance and coordination mandate.”

“In particular, the ACE coordinates with certain organisations and the private sector to combat counterfeiting and piracy,” the source told Intellectual Property Watch. For example, WIPO works with the World Customs Organization, Interpol, and private sector organizations to organise the Global Congress on Combating Counterfeiting and Piracy.

The ACE was established by the WIPO General Assembly in 2002 and “emerged from various preceding WIPO Committees and Meetings dealing with IP enforcement issues,” according to WIPO. The committee focusses on a number of objectives, such as “public education, assistance, coordination to undertake national and regional training programs for all relevant stakeholders and exchange of information on enforcement issues,” said the WIPO source.

During the 8th session, several experts were asked to give presentations on a number of subjects, including: the quantification of economic effects of counterfeit and pirated goods; media piracy in emerging economies; consumer attitudes and perceptions on counterfeiting and piracy; methods of disposal and destruction of counterfeit and pirated goods within the Asia-Pacific region; and IPR infringements and enforcement accounting for socio-economic, technical and development variables.

The WIPO secretariat also presented a report on recent activities [pdf] of WIPO in the field of “building respect for intellectual property.”

Brazil said that its comments from the last session of the ACE had been followed and the new version of the WIPO document presented more information, and was easier to access. However, the delegation said, the secretariat should give more details on activities undertaken by WIPO, in particular in the area of technical assistance and on WIPO’s participation in symposiums and seminars. Brazil said it would be interesting to member states to know who the speakers were at those events, the subjects discussed, and to be able to access the presentations made.

WIPO said it would look into the issue and try providing more information within the limits of what is possible. For example, it said that on the congress on combating counterfeiting and piracy, some meetings of the steering groups are not public and thus content of the meeting is not publicly available.

Meanwhile, Turkey said it will host the 7th Global Congress on combating counterfeiting and piracy, taking place in Istanbul, from 24-26 April 2013. The WIPO secretariat said the UN agency is preparing three panels for the congress, on the subjects of building respect for IP, looking at the broader picture, and public-private partnerships, with inputs with other partners of the congress.

A representative of the World Customs Organization, which is co-organising the congress, said the programme is expected to be posted shortly on the congress website.

The committee’s work this week mainly consisted of listening and commenting on the eight presentations provided by experts in the field.

Group B Favours Enforcement, DAG Wants Development Ties

In their opening statement, Group B emphasised the importance attached to the ACE and the effective enforcement of IP rights, which was of utmost importance for right holders, consumers, and the economy. The delegate said this is true irrespective of the stage of development of countries.

Brazil, on behalf of the DAG, said “the discussions on building respect for IP in this committee illustrates how complex is this issue and the need to further study and understand it in order to provide orientation to adequate and efficient public policies, taking into account the different socioeconomic conditions of each country.”

The Brazilian delegate called for “combining strategies and regarding not only repression, but also educational and economic measures,” recalling that Recommendation 45 of the WIPO Development Agenda is “essential.”

Recommendation 45 requests “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 [World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights]”

The Brazilian delegate added that “only WIPO, a specialised UN agency, has the necessary credentials of expertise and legitimacy to lead the debate on how to better ensure IP protection. Our group is of the view that initiatives outside WIPO that reject this broader understanding of the problem have small chances to achieve sustainable results.”

The European Union said there was need for developing further comprehensive and effective enforcement mechanisms, also emphasising the importance of compliance with existing enforcement, while recognising the different stages of development of member states and the need for technical assistance to achieve objectives. The EU suggested corporate social responsibility as part of an enforcement strategy, adding that strict social standards could play a key role in preventing piracy and counterfeiting.

The Third World Network , a non-governmental organisation working on development issues, said in its statement [pdf] that the initiatives on IP enforcement “should not hamper the development policy space of WIPO member states, especially developing countries.” The representative said “IP enforcement should respect other competing legal obligations of member states, especially human rights obligations such as [the] right to development, right to health, right to education and right to enjoy the benefits of scientific progress and its applications.”

“We are concerned,” he said, “with the over expansion of [the] legal concept of counterfeit to include all types of infringement of IP rights. This would lead to the criminalization of all forms of IP infringement and diversion of public money for the enforcement of private rights, which is currently limited to counterfeiting of trademarks and pirated copyrights goods.”

The ACE did not have time to discuss a summary by the chair, which is expected to be approved at the next session, after member states have the opportunity to provide comments.

The next meeting of the ACE has not yet been scheduled, but is likely to be at least a year from now.

Catherine Saez may be reached at info@ip-watch.ch.

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