At the recent World Intellectual Property Organisation General Assembly, an effort by some developing countries to increase WIPO’s orientation toward development issues met with a lobbying campaign by representatives of developed country industries that would be affected by the reform.

The issue cuts across a number of industries invested in intellectual property rights, including pharmaceuticals, software, music, film and publishing. One industry source said they were there for an “anti-development agenda.”

Intellectual Property Watch discussed industry lobbying strategy with Eric Smith, president of the International Intellectual Property Alliance (see interview below).

Representatives of the pharmaceutical industry were on hand at times during the assemblies, following the development agenda. Eric Noehrenberg, director of international trade and market policy at the Geneva-based International Federation of Pharmaceutical Manufacturers Association, was present at times. Renard Aron, a Brazilian trade expert who recently joined the Washington, DC-based Pharmaceutical Research and Manufacturers Association (PhRMA), dropped in on WIPO to check on the development agenda.

Also in town for the development agenda, though not necessarily on behalf of industry, was Tom Giovanetti of the Texas-based Institute for Policy Innovation (IPI). Giovanetti said the group has received support from the pharmaceutical industry, but he said the company names are kept secret and the group does not always take the industry position. IPI was approved at the assembly for WIPO observer status. Representatives of the Paris-based International Chamber of Commerce also attended and followed the development agenda.

Another attendee on behalf of industry was Mihaly Ficsor, chairman of the Central and Eastern European Copyright Alliance in Budapest, and former WIPO assistant director general in charge of copyright and related rights. According to his biography on the WIPO Academy website, he is “recognised as having played the most decisive role in the preparation, negotiation and adoption of the so-called Internet treaties. These are the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). Ficsor also is an international legal consultant for Washington-based Smith and Metalitz, which operates the International Intellectual Property Alliance (IIPA). Ficsor’s son was on the Hungarian government delegation to WIPO.

The IIPA is a Washington, DC-based lobbying firm that counts the Association of American Publishers, Business Software Alliance, Entertainment Software Association, Independent Film and Television Alliance, Motion Picture Association, National Music Publishers Association, Recording Industry Association of America as its clients. IIPA is seen as the leading industry force behind the US Trade Representative’s annual Special 301 process, which places US trading partners who are found to inadequately protect US intellectual property rights on warning lists that can lead to trade sanctions.

Intellectual Property Watch sat down with IIPA President Eric Smith at headquarters of the World Intellectual Property Organisation during the UN body’s recent annual General Assembly. IIPA is opposed to the proposal to make WIPO more oriented toward developing countries put forward at the 2004 General Assembly by Argentina and Brazil. The assembly agreed to continue consideration of the development agenda in 2006, in two one-week meetings of a Provisional Committee.

INTERVIEW WITH ERIC SMITH, PRESIDENT, INTERNATIONAL INTELLECTUAL PROPERTY ALLIANCE

INTELLECTUAL PROPERTY WATCH (IPW): You indicated you do not frequently attend the WIPO General Assembly, but you made the trip this year. What is special about this year?

ERIC SMITH (ES): The General Assembly meeting is usually about budget. It usually doesn’t involve voting on diplomatic conferences and is not particularly relevant for us. This year – it is only partly the reason I’m here – our members want to make sure the work of WIPO continues along the lines it has been going for many years, doing normative work, technical work, training.

We consider the Brazil, Argentina move as primarily motivated by what’s going on at the World Trade Organization. We don’t think it’s a serious activity, but it could interrupt the work of WIPO, which has always been development oriented. On Brazil’s intervention that WIPO is off course and should get back to looking at the development aspect of IP protection, first, WIPO was never off that agenda. We consider it to be a red herring related to market access and the WTO.

[The development agenda] has been portrayed by the press and member states as a North-South [developed-developing country] issue. Who here is opposed to development? That’s crazy. It’s been portrayed as North-South, but if you look at the actual statements of these countries, you see that it’s Brazil, Argentina, Cuba, Venezuela and a few other countries who have another agenda. There are many others, such as Mexico, who don’t want anything to do with that proposal because they think WIPO is doing a good job on IP. [WIPO Director-General] Kamil Idris wrote a book on IP and development.

Proponents of the development agenda want to change the Berne Convention from 40 years ago. But since then, there has been passage of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, which have been implemented by about 90 countries, mostly developing, because they don’t want to be left behind anymore. A lot didn’t join Berne and were left behind.

From the copyright perspective, the world of electronic commerce makes it easier for developing countries to make their products available. The legal infrastructure has to be put in place. Brazil says don’t go beyond TRIPS (the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights), but Brazil’s copyright law goes way beyond TRIPS. Brazil’s interventions in Geneva are made by permission [of its diplomatic corps]. It’s a political issue.

There are people today who are anti-IP protection or who want it to be weakened. That’s not the WIPO membership. They have the right to argue for broader protections. That’s what happened with the Berne Convention. People are rewriting history here. It’s a revisionist agenda. There are people who want changes. If they can convince the rest of the world to change it, good for them. But they won’t.

IPW: What is your strategy while in Geneva?

ES: I’m here to meet with meeting delegates and the secretariat to talk about a number of industry issues. For instance, the implementation of the WCT and WPPT globally. We’re charged with working that issue globally. We’re always trying to get better, earlier representation. We believe it’s necessary to have overall protection, without which trade will diminish, piracy will grow. We work on diminishing piracy of DVDs, books, CDs … and protecting intellectual property.

[The different industries] come together and speak with one voice through us. Because of the way the industry is organized, it’s not individual companies, so there are many sectors. With patents, it’s the pharmaceutical industry and everybody else.

IPW: Your organisation is seen as essentially providing the basis for the USTR Special 301 report.

ES: Well, we are the most active. The 301 process has been very effective for our members. IP and trade were brought together in 1984. At that time, most countries in Asia had no protection. Piracy was 100 percent. There was no market [in some countries].

With 301, the US said, ‘if you want access to our market, you have to protect our IP. It has led to national laws being changed. Some say TRIPS came about as a reaction to 301. I don’t believe that. TRIPS came about because everybody realized it was the whole sector that needed to be dealt with.

Now we have good copyright laws in almost every country in the world. The US has almost never retaliated because countries realize it is in their interest. This is all I do, I do no other work than this.

IPW: The argument is frequently made that smaller countries negotiating free trade agreements [FTAs] with the US are forced to accept IP provisions that are unfavourable to them. What is your view of the IP provisions in US FTAs, and what is the impact on the multilateral process?

ES: It is in the interest of the country to sign the bilateral. Does the US pull the wool over their eyes? Baloney. Did the US force them to negotiate an FTA? Those countries want to negotiate with the US. It is not a zero sum game, it’s not, ‘we have IP, they don’t.’

IPW: Is there any evidence that FTAs have been good for other countries’ domestic IP industries?

ES: All of these countries have problems in enforcement. But I cannot say that it has been helpful.

But why is it good for you … to make it a civil and criminal infringement to post pirated products on the Internet? Why would people want to have a system that supports piracy? For instance, stopping organised criminals – why would a country not want to shut down that? Over 20 studies over the years of the effect of copyrights on the world economy have consistently shown that 3 to 6 percent, even more, of growth is copyright-based.

IPW: What else are you focusing on at WIPO this week [during the assembly]?

ES: There’s an audiovisual treaty and broadcasters treaty, but those only concern some of my industries [like the music and motion picture industries]. And now a WIPO division is doing studies of the role of copyright industries in local economies.

A lot of developing countries talk a lot about cultural diversification to promote your own culture. You can’t do that if you have 100 percent pirated works because they take over the market. The local producers can’t compete.

END