WIPO Copyright Advice Deemed Misleading To Developing Countries

By Tove Iren S. Gerhardsen and William New

Non-governmental organisations attending this week’s meeting on a stronger development agenda for the World Intellectual Property Organization (WIPO) are working to remind participants of the key elements of the original proposals. In so doing, one group found shrinking knowledge in the public domain and shortcomings in WIPO’s technical assistance.

The new Provisional Committee on Proposals Related to a WIPO Development Agenda will meet from 20 to 24 February. Key elements of the original development agenda proposal from Brazil and Argentina initiated in late 2004 and joined by 12 other Friends of Development include changing WIPO’s mandate to look more like other United Nations bodies. Other proposals include establishing an office for evaluating the impact on developing countries of actions, ensuring adequate access to knowledge, more appropriate technical assistance, and more transparency and inclusiveness in policy-setting.

Consumers International, with 250 members in 115 countries, this week is issuing a new study of 11 developing nations in Asia that found problems for development efforts within the global intellectual property system and in WIPO’s draft laws on copyright.

Separately, 3D, a Geneva-based non-governmental group, is disseminating a recent paper comparing the various development agenda proposals from a human rights perspective, showing that the two are mutually supportive.

In its study, Consumers International found international instruments have progressively expanded the scope of work covered by copyrights, as well as the rights given to rights holders and their duration. It also found that all 11 countries had not taken full advantage of flexibilities available under international treaties and typically offer more rights to copyright owners than necessary. It further found that WIPO copyright laws do not encompass all of the flexibilities found in other international treaties, and offer less public access to knowledge.

For example, the group identified that only three of the 11 countries allow the utilisation of an entire copyrighted work for teaching purposes, despite it being permitted under the Berne Convention for the Protection of Literary and Artistic Works. It also discovered that despite no restrictions in the Berne Convention on the number of copies of publications or sound or visual recordings for teaching, five of the 11 countries expressly restrict it. Five of 11 also restrict the use of quotations despite the absence of limits under the Berne Convention.

Additional findings on copyright were that none of the 11 countries have incorporated in their national copyright laws exceptions to allow the use of copyrighted works in broadcast for educational purposes. Furthermore, 10 of the 11 nations have extended the duration of copyright protection for some or all work beyond the minimum length required under their treaty obligations. Overall, copyright materials were seen as unaffordable in the developing world. The group also expressed support for a Chilean proposal on access to knowledge.

Other findings related to technical assistance showed the draft laws used by WIPO “are failing the interests of developing countries,” the group said. Countries are subject to “continual pressure to ratchet upward the protection granted to rights holders,” it said. The most “insidious,” it said, is the legislative advice being provided by multilateral agencies such as WIPO.

The study gives examples of misleading draft laws such as the use of “public lending,” which under WIPO law is included as an economic right of the copyright owner. But such a right to the copyright owner is not required by any of the international copyright instruments, Consumers International said. “It means that a library cannot lend books without prior permission of the copyright owners.”

Another example is that countries are to be advised to extend the duration of copyrights beyond the minimum required by current international rules.

3D Highlights Human Rights in Development Agenda

The paper from 3D is entitled, “Policy brief on intellectual property, development and human rights: How human rights can support proposals for a World Intellectual Property Organization (WIPO) development agenda.”

The paper argues that the development agenda is an opportunity to “mainstream” development concerns into WIPO’s activities and to have it embrace its status as a UN specialised agency with the obligations that that entails. “Human rights law supports more development-friendly IP policies,” it concludes.

The paper analyses the proposals submitted to WIPO by the African Group, Bahrain, Chile, the Group of Friends of Development, Mexico, the United Kingdom and the United States. The paper notes that “strict IP rules have had an adverse impact on the ability of many governments to fulfil their human rights obligations,” and outlines how human rights can reinforce a development approach to intellectual property policy.

Moreover, the paper divides the proposals into four areas: WIPO mandate and governance, norm-setting activities, technical assistance and access to knowledge and comments on how they relate to human rights obligations. The paper says that all of the 182 member states of WIPO are parties to at least one of the international human rights treaties.

For example, the Friends of Development proposal “suggests the inclusion of explicit language on the development dimension of WIPO objective in the WIPO Convention,” the paper states. The African Group supports this proposal and also suggests that WIPO intensity its cooperation with other UN agencies. The paper notes that the notion of greater coherence between the policies of UN agencies is supported by human rights rules.

Another example is technical assistance carried out by WIPO. The paper says that while the African Group and the Friends of Development argue that this scheme has to be reformed to better address the needs of developing countries, the US in its proposal argues that technical assistance is indeed a positive development tool and should therefore be a key element of the development agenda. In this area the paper supports the idea of WIPO adopting tools such as Principles and Guidelines for Technical Assistance and a code of ethics for the providers of technical assistance.

Other Side Events to Come

Groups from all perspectives on a WIPO development agenda are expected to hold events this week.

On 20 February, Michael Ryan, director of the new Creative and Innovative Economy Center at George Washington University Law School will release a report on Brazilian Bio-Medical Innovation. The report shows that Brazil is benefiting from innovation and intellectual property rights.

On 21 February, an event on copyright issues will be held, with a range of speakers expected, including Shira Perlmutter of the International Federation of the Phonographic Industry, Teresa Hackett, International Federation of Library Associations, Ronaldo Lemos of Creative Commons Brazil, and Paul Aiken of the Authors Guild of America.