IP Private Sector Tests Relevance Of International Policy Organisations

CAMBRIDGE, ENGLAND – In an age when private sector interests are arguably returning to dominance in intellectual property policy debates, two key global policy bodies are being pushed to show their relevance.

At the 17th annual conference on intellectual property law and policy sponsored by Fordham University and held on 14-15 April, it was generally difficult to distinguish the United States and European policymakers from the US and European industry rights holders and in some cases, academics. But the perspectives from the World Intellectual Property Organization and World Trade Organization, both of which reflect a broader global base, were somewhat more nuanced – and on the defence.

The Fordham event held this year at Cambridge University brought together a high-level but narrow slice of developed-country rights holders, their lawyers, and the governmental and intergovernmental officials and judges they seek to influence. There also was a presence of academics and some non-governmental representatives, who were occasionally singled out on panels.

A key topic of the meeting was the call for stronger enforcement of IP rights, the vast majority of which reside in a few developed countries. One focus was the negotiation for a plurilateral Anti-Counterfeiting Trade Agreement being led by the United States outside of the international bodies, and another was an assault on a preliminary study from the European Union that found pharmaceutical companies are using the patent system to delay entry into European markets of lower-priced competing generic products (IPW, European Policy, 5 December 2008).

Some in the conference questioned the current relevance of international bodies such as WIPO and the WTO, given the past stalemates on IP-related policy occurring in those Geneva-based organisations. Regional bodies also were scrutinised.

WIPO Deputy Director General Michael Keplinger told the event that under the leadership of Francis Gurry, director general since last October, WIPO will be more efficient, goal-directed and accountable for its actions.

Keplinger raised some eyebrows when he said WIPO’s best approach to addressing the needs of blind and visually impaired readers may not be through a treaty on exceptions – as has been proposed – but rather through simply playing the role of providing a platform for stakeholders to work out differences among themselves.

Addressing the problem is a matter of establishing “trust relationships” between advocates for the blind and publishers, not just exceptions to copyright law, Keplinger said. A “soft law” approach to practical relationship and licensing arrangements likely would be more effective than negotiations for a treaty, which could “take years” and still not solve the problem, he said.

Some have previously perceived Gurry’s statements, such as he made at the recent WIPO Standing Committee on the Law of Patents (IPW, WIPO, 24 March 2009), as condoning a negotiation on a treaty for the blind. Keplinger’s view is similar to one taken by the US publishing industry has taken a similar view on an exceptions treaty for the visually impaired. Keplinger comes from a US government copyright perspective but at WIPO speaks from an international organisation perspective or on his own behalf.

An advocate for the blind attending the Fordham event later argued that the lack of faith in a treaty solution expressed by Keplinger seemed incongruous with the strong US and EU push for a quick wrap-up to the ACTA.

Keplinger also was pressed on WIPO’s ability to be more helpful to developed-nation industry in protecting their IP assets. Keplinger noted the “respect for IP” initiative undertaken by Gurry, which attempts to bring developing countries on board to protect foreign and their own industries’ interests. He also said studies can “turn governments’ thinking around.” But he said stronger normative efforts on enforcement at WIPO would not be likely in the near future given the resistance of some major developing countries.

Meanwhile, WTO defenders argued in Cambridge that rather than sidelining the WTO, the global economic crisis has propelled it to the forefront of global policymaking as restoration of trade levels, expected to drop by nearly 10 percent in 2009, is seen as essential to economic health. The WTO’s less-noticed roles in government transparency and monitoring are now the focus.

But the economic crisis appears to be having little impact on the international debate on IP and trade, as the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) continues to provide a basis for IP trade, a speaker said. One impact of the crisis is to drive IP industries to put more emphasis on the economic value of the IP assets in international trade.

Recent WTO dispute settlement cases related to IP rights include not only the well-known case by the United States on China’s enforcement (IPW, WTO/TRIPS, 26 January 2009), but also a case brought by the European Union against China’s measures affecting financial services, the speaker said. In the case, Europe raised questions about the protection of trade secrets of foreign suppliers of financial information services. The case was settled on 9 December, with China committing to protect such information, the source said.

One case still under review by an arbitrator, involving Brazil’s challenge to US cotton subsidies, could lead to cross-retaliation, meaning if Brazil wins, it could recover the damages from IP trade with the US.

The WTO also has a role in rapidly rising number of bilateral and regional trade agreements, and 435 regional trade agreements have been notified to the WTO, 243 of which are in force, the source said. The WTO says such agreements are a “stepping stone” for multilateral liberalisation, but cited concerns about the “spaghetti bowl” of agreements making it difficult for countries to keep track of their commitments.

A final point was that any IP provisions in bilateral agreements signed after 1994 must be implemented on a most-favoured-nation status under WTO rules, meaning if they are offered to one WTO member, they must be offered to all. There are 49 such agreements notified, the speaker said, from 34 members.