WIPO Assembly Considers Paths For Possible New Treaties

Member governments of the World Intellectual Property Organization this week set in motion negotiations that could lead to international treaties or other instruments on exceptions and limitations to copyright, the protection of traditional knowledge and folklore, and harmonisation of industrial design laws. Negotiations won’t be without difficulty, however.

The WIPO General Assemblies met from 20-29 September, including several days of reports from various WIPO committees.

On the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), members took note of the report, but fault lines were already apparent in opening statements to the assemblies. The key sticking point appears to be whether an agreed international instrument on the protection of traditional knowledge and traditional cultural expressions will be binding or not.

The European Union emphasised the need for an instrument that is “flexible, sufficiently clear and non-binding.”

And the United States “remains concerned that” a binding instrument could have detrimental effects on American creative industries and the public domain, and called for the committee to “properly limit the scope of protection” and establish “broad exceptions and limitations” on a resultant instrument. Otherwise, the delegate said, any proposed regime “will be unworkable.”

This is the opposite to the US position in favour of stronger rights on other types of creative works, such as music, film and software originating in the US.

Meanwhile, several developing countries stressed the importance of a legally-binding agreement. Egypt on behalf of the Development Agenda Group said any instrument “should be legally binding in nature in order to ensure the mandate” of the IGC, for example.

Advocates for an instrument to protect against the misappropriation of traditional knowledge, genetic resources and traditional cultural expressions have said the intellectual property system is insufficient to address the particular needs of these forms of knowledge. A new type of IP instrument is needed, they argue, to prevent the abuse of indigenous and local communities and ensure that genetic resources are used with the consent of those that own them and in an environmentally sustainable way.

But this line of argument has been difficult to accept at WIPO, where for twelve years a series of studies and attempts at reaching consensus culminated in a near breakdown of the committee after a year of failing to reach agreement even on the progress for discussions. The IGC was pulled out of the fire at last year’s General Assemblies with an ambiguous agreement to work towards an “international legal instrument for the protection of traditional knowledge, genetic resources and folklore.”

Meanwhile, a modification to the WIPO “voluntary fund” that allows indigenous and other community representatives to travel to attend WIPO meetings of the IGC was adopted. The amendment classifies “intersessional” meetings of the IGC as events, for which funding can be provided.

The next meeting of the IGC is 6-10 December.

Copyright and Related Rights

On the Standing Committee for Copyright and Related Rights, three issues topped the agenda: a treaty on the protection of audiovisual (AV) performances, a treaty to protect the rights of broadcasters, and exceptions and limitations for the visually impaired, education, and library archiving.

At the last meeting of the SCCR, no agreement could be reached on these issues, and several states said this should have been reflected better in the report of the committee to the General Assemblies. Bangladesh on behalf of the Asian Group suggested the decision of the General Assembly be reworded to read that the Assemblies “take note of the information contained in this document, while bearing in mind that there was no agreed conclusion reached at the 20th session of the SCCR,” which was agreed by the assembled delegates.

“The Asian Group is concerned” about the way the current report is crafted as it “gives the impression that the 20th session of the SCCR reached understanding on a number of issues, which delegations would recall was not the case,” Bangladesh said.

On the AV treaty, most states supported continued discussions. On broadcasting, most states also supported continued intensified work, though some added that social dimensions of additional protections should also be acknowledged.

“We remain convinced of the necessity of a treaty to address technological issues faced by broadcasters,” Switzerland said on behalf of the Group B developed countries. Group B includes the United States, which took a different view from Europe on the details of the treaty before negotiations collapsed in 2007.

Mexico said that nationally, the protection of broadcasters is a “very important matter.” South Africa said that they were open to discussing broadcasting but that socio-economic dimensions should also be taken into account.

On substantive issues related to exceptions and limitations, Brazil said that while “approaches may vary” they “represent a positive collective movement in the same direction.” Norway said the several proposals on the table signalled the “firm commitment of the committee” on the issues.

There are currently four different proposals for an exceptions and limitations proposal: the original proposal by Brazil, Ecuador and Paraguay written with the World Blind Union, proposals from the African Group for a comprehensive treaty covering for the exceptions and limitations for the disabled, educational and research institutions, libraries and archive, a draft “consensus instrument” by the United States, and a draft joint recommendation by the European Union.

On exceptions and limitations, Group B recognised “the special needs of those with print disabilities” and “acknowledged with interest” a submission by the African Group.

The strongest advocates for a visually impaired treaty are worried that attaching extra issues to such a piece of legislation will slow the negotiating, delaying the realisation of hoped-for exceptions for the blind. But those holding out for a more comprehensive treaty – primarily the African Group supported by library groups – are concerned that if a visually impaired treaty passes by itself, there will be no momentum to create exceptions in other areas considered vitally important to the continent’s development.

Angola on behalf of Africa said, “We believe a compromise can be found through a timetable.” Angola noted that the group had “formally submitted a treaty” on exceptions and limitations related to education, libraries, archiving and the disabled in order to “address our needs but also needs of those with print disabilities.”

The adoption of an international instrument for the visually impaired in a piecemeal framework “would lead to a proliferation of instruments,” which is against normal practice, said Algeria. Pakistan stressed to member states the need to “come forward and heed the call not only to the millions of visually impaired but the billions who do not have access to educational material.”

Ecuador suggested a diplomatic conference be decided upon at the 2011 General Assemblies to discuss a proposed treaty, and said there was merit in all of the proposals, and one possible way around it would be to establish a “working calendar that would include aspects to all the proposals.”

Knowledge Ecology International said that rights holders had benefited from breaking up their proposals into separate areas, and that the African Group’s strategy at the IGC of separating discussions on genetic resources, folklore and traditional knowledge had been useful in moving forward the work of the committee. KEI said it opposed “wrong-headed proposals by the US and the EU” for weak procedures, and added that those proposals were inconsistent with those countries’ national laws.

The Trans-Atlantic Consumer Dialogue said the “legitimacy and viability of WIPO itself” was hanging on success at the SCCR as in the last 14 years no proposal has gone into effect from the organisation. TACD also called out France and Germany for “hiding behind the EU” and for valuing “more the rights holders than human beings.” France and Germany have been said to be particularly resistant to a strong treaty on exceptions for the visually impaired.

The World Blind Union repeated that only some five percent of books are ever made in accessible formats, and said “in an ideal world, publishers would solve this “book famine” by publishing in accessible formats. In the real world this does not happen. The work to convert these books into accessible formats falls to specialist organisations with scarce resources.”

“We need a legal safety net for the many cases where the voluntary approach does not work. We need exceptions to copyright law for print disabled people in the some 120 countries which don’t have one yet. And we need a law to allow legal pooling of our meagre resources across national borders,” the WBU said.

“We are acutely aware that the longer you fail to agree, the more print disabled people miss out on reading and are excluded from education, culture and indeed from full participation in the societies you are here to represent,” he added.

The next SCCR meeting is 8-12 November.

WIPO Strategic Plan

Alongside the substantive work programme established by the member-state Program and Budget Committee and approved this week, the director general of WIPO has also floated a strategic plan of his own. The plan steers the organisation toward greater relevance, usefulness and competitiveness (IPW Monthly Reporter, August/September 2010), and more in the direction of “global issues” such as climate change and food security.

WIPO Director General Francis Gurry told Intellectual Property Watch that the strategic plan represents “guidance for the secretariat.” The plan, which will be subject to a mid-term review, is a set of “high-level principles” for the secretariat, he said.

The secretariat had asked for member comments over recent months, and accepted further comments by this past Monday. But this week the plan did not receive member state approval as sought by the secretariat. Rather, the Assembly just “took note” of it.

The statement of the Development Agenda Group of countries said it hoped that the secretariat and member states can arrive at an intergovernmentally agreed document that can truly serve as an effective guide and compass for WIPO’s work in the medium term.”

Afterward, the secretariat did not fail to trumpet the support it saw for its plan for “reforms,” in a press release on the outcome of the assemblies.

Trademarks, Industrial Design

In the past, the Standing Committee on the Law of Trademarks, Industrial Design and Geographical Indications (SCT) has been fairly quiet in terms of breaking policy negotiations.

But this year, the committee is gathering momentum to negotiate a treaty on the protection of industrial designs, address protection of country names from being trademarked, and begin work on trademarks and the internet. The latter derives from a WIPO joint recommendation on the protection of marks and other IP rights in signs on the internet.

On industrial design, the committee is preparing to recommend to next year’s General Assembly that it move to a diplomatic conference – a high-level treaty negotiation in WIPO terms – in 2012 or 2013. The idea emerged from work showing possible areas of convergence among national laws and practices, according to the WIPO information reports on other WIPO committees, document WO/GA/39/9.

During the Assembly, the European Union said they think “the time is right” to bring the issue of designs to the forefront.

Also on the committee work plan is a proposal to increase the protection against country names being registered or used as trademarks. The issue is led by Jamaica, joined by Barbados, both of whom raised the issue in the Assemblies plenary, calling attention to a secretariat questionnaire sent to members, whose results will be raised at the next SCT meeting. It is unclear whether this issue will gain traction in committee.

The SCT meets next from 1-4 November.

Standing Committee on the Law of Patents (SCP)

The patent committee has been working for several years to get back on track and agree on a work program. Activity related to this committee was addressed in a bigger picture at the assemblies (IPW, WIPO, 27 September 2010).

The next meeting of the SCP is 11-15 October.

Perhaps related to the patent activity, but an offshoot of the former information technologies committee, the Committee on WIPO Standards was acknowledged and will hold its first meeting on 25-29 October.

A second offshoot, the Committee on Global IP Infrastructure, has not gotten off the ground as members could not agree earlier this year to recommend its creation to the Assembly.

Enforcement

WIPO’s Advisory Committee on Enforcement (ACE) is a non-negotiating body. A work programme has been agreed for its next meeting on 1-2 December. The group will analyse and discuss studies on various aspects of IP rights infringement, including a look at ways it is being addressed.

Also on enforcement, WIPO again will cosponsor with the global police and customs agencies their periodic global congress on counterfeiting and piracy. WIPO is lead sponsor of the next congress, which will be held on 2-3 February 2011 in Paris.

A number of countries took the floor to discuss enforcement issues. All parties appear to agree that enforcement is necessary, but many see nuances in how it is carried out.

The European Union told the assembly of the importance of enforcement and urged the advisory body to work to build an understanding of the effects and impacts of IP infringement.

Brazil saw the new work programme as a new opportunity for a discussion of enforcement. India, Egypt and others with a development focus called for “balance” in WIPO’s approach to the issue, including in the selection of speakers for the anti-counterfeit congress.

Knowledge Ecology International said it hoped the current “fever” of enforcement does not “sweep away” the concept of exceptions that were “there for good reasons in the first place.”

Domain names

WIPO’s handling of disputes about ownership of internet domain names under its Uniform Dispute Resolution Procedures (UDRP) is an important part of its work and is globally recognised. The section has raised concerns over the past year about developments such as proposed new domain names and new international domains, both under the Internet Corporation for Assigned Names and Numbers (ICANN), a non-profit corporation based in California.