WIPO IP And Development Conference Looks At Dynamic IP Systems 19/04/2016 by William New, Intellectual Property Watch Leave a Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)Countries develop intellectual property systems in different ways, and a recent conference at the World Intellectual Property Organization delved into some thoughts about, and examples of, how this is done. The WIPO Conference on IP and Development took place on 7-8 April. The first panel of the second day was entitled, Designing a Dynamic IP System: Sharing Practices, Developing Strategies, moderated by John Sandage, WIPO deputy director general, Patents and Technology Sector. Speakers included: Prof. Andrew Christie, Davies Collison Cave Chair of Intellectual Property, University of Melbourne (Australia) Law School; Maximiliano Santa Cruz, director, National Institute of Industrial Property of Chile, Santiago; and Anzhela Plionkina, deputy director general, National Center of Intellectual Property of Belarus, Minsk. example of a complex dynamic system Christie talked about features of a dynamic (complex) system. He showed an example of the complexity of a dynamic system (on left), and said the features are: “Open – not closed (i.e. not self-contained) Nested – components may themselves be complex Memory – prior states influence present states Non-linear – output not directly proportional to input Feedback loops – dampening and amplifying Emergent organization – larger entities arise through interactions among smaller entities Cascading failures – failure in one or more components can cascade, with catastrophic consequences on the functioning of the system!!” He then showed a simplified diagram of the IP system, but said IP systems fit the definition of a dynamic system. For instance, they are very open, connected to all aspects of society. He noted that the IP system is really a collection of very different regimes (e.g., patents, copyright, trademarks). The IP system is influenced by technological and societal factors, as well as regulatory factors. Christie was asked to talk about copyright. Looking at technology and its impact on copyright, he said copyrighted material gets embodied in technology, and is available as a reflection of technological evolution. And society has become much more of a demander of copyrighted material, not passively receiving it as in the past. He pointed to the exponential rise in copyright legislation in Australia, with legislation and inquiries skyrocketing since the 1990s. Christie said it is not really possible to design an IP system per se, but rather design regulations for the IP system. And he said there is concern that the various treaties, trade agreements and deals that are growing are imposing rules on national-level choice. Panel from left: Christie, Santa Cruz, Sandage, Plionkina. To right: Getachew Alemu, IP consultant, Addis Ababa He mentioned key regulatory design issues, noting that it is not possible to come up with an exact configuration of the right IP system for each country but that there are factors that can be considered and decided upon. He diagrammed for instance that it is possible to “dial up” or down the amount of technology neutrality versus technology specificity. He found that more technological neutrality seems to favour rights holders, while more specificity seems to favour exceptions to rights. In addition, on the societal factors, there is a choice between rights and exceptions, he said. And on the regulatory factors, there seems to be a choice between certainty and flexibility. “All of these things are desirable,” he said. “The fact is, you can’t have them all at the same time.” Then he looked at how they relate to one another. For instance, if you dial up technological neutrality in a copyright system, you get more flexibility in a regulatory regime, but it tends to favour those who want rights. For example, using the broad term “moving pictures” for audiovisual work protection versus tech neutrality, rights holders are very happy with that because it is broad. On the other end of the spectrum, specificity, he gave as an example Australia’s protection of the broadcast signal, for which the definition is long and drawn out, with significant detail. This has a lot of certainty about it, and tends to favour those with exceptions because it keeps the definition very narrow. Comparing rights and exceptions, he contrasted the exclusive right of reproduction (a very neutral term) with the US Digital Millennium Copyright Act (DMCA), where the US Copyright Office conducts a triennial rulemaking update for exceptions to the prohibition on anti-circumvention. The last update, last October, added 22 more exceptions. That’s an approach that favours exceptions but is very tech specific. Finally, he noted that dialling up certainty (versus flexibility) has a positive effect on rights owners. He gave an example of the European Union Information Society Directive, Article 5, which contains a long list of exceptions to exclusive rights. He contrasted that with the “classic example of a flexible exception,” section 107 of the US Copyright Act, on fair use. So if you go with certainty, you punch a lot of little holes in it with exceptions and limitations, and if you go with flexibility, you punch one hole with the exception but it does lack certainty (it isn’t always clear what is or isn’t a fair use). Christie made some comparisons between copyright law in Australia and the United States, including actually weighing the printed text of each, and found: Australian Copyright Act US Copyright Act 2.1g 0.8g Favours rights holders favours users more than you think In the end, countries choose how to make up their copyright laws. For instance, he said, the Australian act is 2.5 times as large as the US act, and ostensibly 2.5 times more complex and specific, which means it more heavily favours rights holders. View from Chile Santa Cruz told a story from American author Mark Twain’s “A Yankee in King Arthur’s Court,” written in the late 1800s. When a person from that time period wakes up to find himself in the earlier time of King Arthur, he is revered and reviled for his great knowledge. Spared from persecution, he is made a leader of the nation. And in his remarks, he declares: “A country without a patent office and a good patent law was just a crab, and didn’t travel any way but sideways and backwards.” Santa Cruz, who said he took with him much learning from his days representing Chile on IP issues in Geneva a few years ago, said IP offices are no longer lost in bureaucracy but are now recognised in their own right. IP systems can become much more complex, as they are not just administering laws, regulations and guidelines, he said. But they also have to adapt with intelligence and deal with complex systems at the national and international levels. He walked the audience through the highly developed website of www.inapiproyecta.cl, which allows searches on a variety of themes, such as measuring what ideas are now in the public domain. Belarus Builds an IP System Plionkina described the extreme case of Belarus, which after gaining independence from the Soviet Union started its own intellectual property activity “from zero” in 1991. In the early going, the country was in “deep crisis,” as resources had been concentrated in Moscow. It was necessary to start from scratch to set up new institutions. They also made a transition from “inventors’ certificates” to a regime of exclusive rights, and moved to integrate into the international system, she said through translation. The national patent and copyright offices were set up in 1992, and in 2001 were brought together under the National Center of IP. Now, Belarus has a modern IP infrastructure and is joining numerous international IP treaties and conventions. To build a dynamic IP system, she said it should serve the goals of the economic, social and cultural development of the society, should be self-sustaining, and have available resources for all responsible for its development. Now the focus is on the need to involve small companies and others in the IP system, Pliokina said. They are following a strategy for 2020. She noted that the IP system should not damage the interests of society, though she stressed the importance of a strong IP system. And she said the country does not yet have a dedicated university IP program, something it is looking into. WTO Perspective On a later panel, WTO Deputy Director-General Xiaozhun Yi looked back on 20 years of TRIPS and WTO-WIPO cooperation, highlighting a few trends. For instance, he said, the IP system is “not a stand-alone policy domain,” but rather must be coordinated with other policy tools in a way that is tailored to national needs and circumstances. An example he gave is improving “value addition and stronger branding of traditional products such as processed foods and handicrafts, or programs to transform public research into innovative capacity.” In particular, this means how trade and IP interact with food policy, environment and public health. Other points he made are that partnerships are essential, such as the one between WTO, WIPO and the World Health Organization, and that 20 years has led to impressive upgrades in legal and administrative systems at the national level. It also has led to developing countries having a greater capacity to implement “appropriate policy options that respond more directly to their domestic economic and social priorities,” he said. Possible suggested future priorities and directions he raised included coordination, especially in light of the United Nations Sustainable Development Goals (SDGs) adopted last year, including among technical cooperation providers. It also included: value addition, making the best use of resources; creating “positive feedback loops” so it is not top-down; and a focus on least-developed countries. Image Credits: Andrew Christie, WIPO Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related William New may be reached at email@example.com."WIPO IP And Development Conference Looks At Dynamic IP Systems" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.