Lines Of Global Enforcement Debate Surface At WIPO Meeting

Leading debates surrounding global efforts to stop counterfeiting and piracy of intellectual property rights-protected goods and services came into full view at the recent meeting of the World Intellectual Property Organization enforcement committee. In that debate, a long list of civil society groups has raised concern about WIPO enforcement activities.

The WIPO Advisory Committee on Enforcement (ACE), which met on 30 November and 1 December, saw presentations and case studies, as well as some discussion about regulatory issues, according to participants.

The future work of the committee included proposals from the United States, Russia and Peru.

The Russian proposal, which stirred debate among internet advocates, states:

“The Federal Service for Intellectual Property (ROSPATENT) proposes the following issues for future consideration:

1. Online infringement of copyright and measures to combat it, especially when it comes to cross-border cases of infringement;
2. The impact of enforcement mechanisms adjusted in other countries in order to tackle piracy, especially in the field of P2P technologies;
3. Infringement of exclusive rights on objects of intellectual property in the Internet, in particular, problem of control of “parallel import”.”

A number of civil society groups reacted particularly to the Russian delegate’s presentation of the proposal, which they said suggested a call for stronger regulation of the internet and of internet intermediaries (those that carry the content).

According to the Computer and Communications Industry Association, Russia mentioned that the studies it proposes could help with “how governments can regulate relationships between stakeholders disseminating information on the internet,” a suggestion supported by IFPI, the music industry association. Several NGOs raised concern.(Note: this exchange was not confirmed at press time.)

[Update: the CCIA intervention at the ACE meeting is available here. (pdf)]

The Centre for Internet & Society (India) reacted by raising issues of the WIPO Development Agenda and the acceptability under international law of parallel importation. The CIS statement is here.

WIPO has been considering the suggestion that internet intermediaries could do more in the fight against online piracy, but it remains to be seen how it will emerge in a policymaking forum.

The Peruvian proposal called for new approaches to assessing counterfeiting and piracy in order to both stop it but also to promote new development of local IP.

“[F]irst and foremost, we need to promote the creation of IP and that one, although not the only, mechanism for achieving that aim is appropriate protection of the rights of creators,” Peru said. “Against this background, it is vital that the future work of the Committee should focus on re-assessing the mechanisms which have, until now, been used to combat infringements of IP rights, while contributing to the development of new strategies which take into account the situation in each country.”

Specifically, Peru proposed that “studies developed using objective and impartial parameters be carried out on the economic impact of piracy and counterfeiting in countries.” These should take into account the benefits to society from illegal industries. “Whether we like it or not, society does gain from illicit activities,” it said.

Peru also proposed that “studies be carried out to measure the real impact of development on legislation concerning enforcement measures (increased sanctions or sentences, the establishment of regular procedures, etc), as well as their implementation by the authorities as a part of their efforts to reduce piracy and counterfeiting.”

And finally, Peru said: “As long as there is a market for these kinds of goods, there will always be someone willing to meet such demand. At best, an individual punished for infringing rights might change his ways, but he will simply be replaced by another similar person willing to satisfy such demand.” This led it to propose that “rather than implementing post-infringement measures, the focus should be on preventive actions or measures.”

The US proposal from July to “undertake a comparative analysis of methodologies applicable to the following:
1. Determining jurisdiction in civil and criminal cases;
2. Gathering and storing evidence; and
3. Corporate Social Responsibility (CSR) on building respect for IP.”

Worldwide NGO Concern about WIPO Enforcement Activities

Meanwhile, civil society groups were in force at the meeting, and raised concern beforehand with a letter signed by some 45 NGOs to WIPO Director General Francis Gurry. The 29 November letter, available here, said the groups are “seriously concerned with WIPO’s approach to enforcement.”

The signers highlighted a lack of transparency about WIPO technical assistance activities, the extensive link being made to public health and safety (which they called “questionable and tenuous at best”) as led by industry, and the possibility that WIPO enforcement activities might be undermining existing flexibilities in IP law. Signers included AIDS groups, digital civil liberties groups, and organizations working on development on the ground in countries around the world.

Substantive Studies

A number of studies were presented at the enforcement meeting. The studies are available on the event website.

A review of statistical information on counterfeiting and piracy was prepared by Charles Clift, a senior research consultant at the Centre on Global Health Security, Chatham House (UK) and former senior official involved in World Health Organization negotiations on research and development for neglected diseases.

The review looked at available data from governments, the private sector, and international organisations and academic institutions, and found that it varies significantly and in cases is difficult to substantiate. The study focussed on amounts of counterfeited and pirated products rather than assertions of the value of loss and other data.

IP rights are by nature territorial, it said, with each country free to make its own laws consistent with international agreements, such as TRIPS. This creates a problem for the collection of data as what constitutes an infringement in one country may not in another. Furthermore, enforcement methods vary between countries.

The review looked at a number of countries and organisations, finding among other things, that there is at times a questionable statistical basis for, or even a seeming bias in, the assertions made.

“Given the shaky basis for these statistics, authorities should be wary about the way statistics are presented, or the claims they make,” the review said, citing an EU assertion about shipments as an example. “The language used here is not neutral and the statistics are quoted selectively,” it said.

Statistics are useful but must interpreted and explained, the review said. They also should be made more comparable between agencies and regions, including classifications. The World Customs Organization in particular was flagged for lacking explanations of its data.

The review also notes the difficulty in agreeing internationally on the definition of counterfeiting itself.

Overall, the review first recommends that “an appropriate international body should:

• undertake a survey of governments and agencies responsible for enforcement to investigate unmet statistical needs in this area
• propose ways in which such needs might best be met
• suggest priorities for improving the statistical basis for enforcement
• identify the costs and benefits of different strategies.”

The European Commission offered a presentation on “work on counterfeiting and piracy concerning the development of a methodology to measure the socio-economic impact of counterfeiting and piracy.” The paper was prepared by Jean Bergevin, head of unit, Fight against Counterfeiting and Piracy, Commission Internal Market and Services Directorate.

The paper discussed a study, expected to be completed in early 2012, which will identify and compare existing studies, propose a methodology to estimate the size of counterfeiting and piracy markets, and test the methodology through the quantification of the scope of counterfeiting and piracy for particular sectors.

In particular, the paper described challenges faced in working on the study, such as the lack of agreement on methodology, and the lack of data. Other challenges are making credible, transparent assumptions, avoiding additional administrative burden, and achieving widespread agreement around a credible compromise.

Additional reports were given at the ACE meeting, such as: “Work under Way in the UK Intellectual Property Office (IPO), and Work by the Strategic Advisory Board for Intellectual Property Policy (SABIP);” and a “Presentation of the French Charter on the Fight against Cyber-Counterfeiting of December 16, 2009.”

The French Charter presentation elicited a response from the India-based Centre for Internet & Society, raising questions about due process, privacy and free speech. The CIS comment is available here.

African View

Another paper for the ACE was on “Piracy and Counterfeiting: Perspectives and Challenges for African Countries” by Gift Sibanda, director general of the African Regional Intellectual Property Organization (ARIPO).

Sibanda gave a practical view on counterfeiting in developing countries as different from developed countries, including through the fact that legitimate IP-protected products tend to be limited in availability and expensive, which has contributed to the rise of full-fledged markets in knowingly inferior but more affordable knock-off versions of these products. He said much of counterfeiting is problematic for the value of the actual brand, and in some cases presents a safety or health concern.

He called counterfeiting and piracy a “scourge” that needs to be addressed, but said that “lack of political will, high levels of illiteracy, absence of centralized enforcement systems in individual countries and technology disparities render developing countries vulnerable to counterfeiting and piracy.”

Sibanda also encouraged continued adherence to the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which he said is “carefully balanced in a very dynamic manner to aid and sustain the fight against counterfeiting and piracy.” He noted the global disagreement over how to address these problems, and urged greater multilateral cooperation and coordination. He suggested that the balance inherent in the TRIPS agreement should be maintained in bilateral trade and economic partnership agreements.

Sibanda cited WIPO Development Agenda Recommendation 45, which he said emphasizes the need to “approach intellectual property enforcement in the context of broader societal interests and especially development oriented concern” all in accordance with Article 7 of the TRIPS agreement.

He also highlighted “the significance and relevance” of WIPO’s Strategic Goal VI which encourages “informed and empirically well-founded policy discussions at the international level to support the creation of an enabling environment that promotes respect for IP in a sustainable manner and strengthen capacity in Member States for the effective enforcement of IP rights in the interests of social and economic development and consumer protection.”

Also presented at the ACE was a proposal on mainstreaming corporate social responsibility towards developing respect for IP rights, prepared by Mohiuddin Babar, CSR consultant at BizCare in Bangladesh. The notion is that businesses will succeed in protecting their products better if they think beyond only enforcement to building relationships with consumers in communities.

UN Crime Agency Joins In

A new outside observer applied to join the ACE: the United Nations Interregional Crime and Justice Research Institute (UNICRI). Established in Turin, Italy in 1967, the group has launched a program “to counter the involvement of organized crime in counterfeiting and to address the adverse impact of this criminal activity on consumers’ health and safety.” Its work in that area ranges from “research to the implementation of training courses targeting police forces, customs and prosecutors,” it said in WIPO document. In May 2011, UNICRI appointed a new director, Jonathan Lucas of Seychelles (with significant time spent in Geneva), who has background in narcotic drug control.