Studies Inform WIPO Enforcement Meeting As Development Issues Debated

Development Agenda coordination again topped the agenda this week at the latest World Intellectual Property Organization meeting – this time, in the Advisory Committee on Enforcement. Also causing discussion was how to proceed with the group’s work programme, as seven governments made different suggestions for future topics.

The 1-2 December meeting ran late into Thursday night as informal consultations between member states tried to resolve disagreement on whether or not to have an independent agenda item to discuss the work of the advisory committee as related to Development Agenda implementation.

In the end, a successful compromise solution was found in listing the coordination mechanism under a modified agenda item on future work (now just “work”) of the ACE. Under the “work of the ACE” it is understood that there are two points for discussion, sources told Intellectual Property Watch. These are the coordination mechanism, and also future work for the committee. This was a compromise between developing countries who wanted a dedicated agenda item on the coordination mechanism and developed countries who wanted to discuss it in the summary of the committee’s work at the end of the meeting.

Governments from all sides of the issue emphasised the importance of a footnote in the meeting’s report that this solution “does not constitute a precedent for the future.”

Still, the compromise has shown how some “sensitive and complex issues can be solved,” and could be a first step towards making it easier for WIPO bodies to agree on this issue in the future, said the meeting chair, Makiese Augusto of the Angolan mission.

A European Union delegate agreed, saying that continuous discussions on the coordination mechanism over the last several months are part of the necessary “footwork” before things can move forward.

On future work, the committee decided to continue with its existing programme [pdf] adopted at the last ACE meeting in November 2009, on which there is still much left to do.

Proposals for New Work

But there were several proposals for new areas on which to focus future work, submitted by the delegations of the United States, Egypt, South Africa, Bangladesh, Belgium, and the Development Agenda Group, sources said. These proposals will be discussed at the next ACE meeting, to take place after the September 2011 General Assemblies.

The proposals include: an analysis of the obligations of rights holders to aid member states in enforcement; a mapping of enforcement and anti-counterfeiting initiatives in free trade agreements and at national, regional and multilateral levels; and a study on enforcement effectiveness “with a view to formulating a strategy for enhancing … IP enforcement policy stimulating development and economic growth.”

Other proposals were: analyses of WIPO technical assistance, public awareness efforts, corporate social responsibility efforts, and international cooperation intended to increase respect for IP; analysis of the relationship between “poverty, inequality, the need for imitation and the protection of foreign rights”; the socioeconomic significance of flexibilities for developing countries in the World Trade Organization Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement; comparing methods for calculating damages and gathering evidence; and improving WIPO’s enforcement-related technical assistance programmes.

Also discussed at the committee were a series of detailed studies exploring different aspects of enforcement. More details on these are available below.

In an unusual move, comments by member states over various agenda items are included in the conclusions of the committee. This is because the Advisory Committee on Enforcement does not provide minutes to the General Assemblies the way many committees at WIPO do, and member states wanted to have their discussion reflected.

The text of the summary by the chair of the meetings conclusions is available here [pdf].

Discussion points included things such as the delegation of South Africa’s reservations regarding a report on an anti-piracy venture in South Africa. They also included several statements by the Development Agenda Group (DAG) and, individually, some of its members on the need to mainstream Development Agenda goals into WIPO’s work on enforcement.

The studies, said the DAG (according to the draft conclusions), are encouraging as they reflect WIPO’s efforts to develop an “inclusive approach” towards IP, and take into account diversified views. The Philippines emphasised [doc] that IP rights in its view “are not only construed as enforceable legal rights affording protection to the rights-holder, but, more importantly, as a tool for sustainable national development.”

Brazil in a long statement praised the use of experts and expert studies as a basis for discussions on enforcement, adding that the ones submitted so far served to highlight the complexity of the IP enforcement landscape and the utility of searching for one-size-fits-all approaches to enforcement.

Coordination Mechanism Compromise

At the September General Assemblies, member states agreed on a coordination mechanism [pdf] mandating that all “relevant WIPO bodies… include in their annual report to the Assemblies a description of their contribution to the implementation of the respective Development Agenda Recommendations.” The mechanism also instructs the relevant WIPO bodies “to identify the ways in which the Development Agenda Recommendations are being mainstreamed in their work.” These reports are then meant to be forwarded to the Committee on Development and Intellectual Property (CDIP) for discussion during its first substantive agenda item at each session.

But there has been disagreement since September over how precisely states should implement this directive of the General Assembly. Members of the DAG have proposed an agenda item on the issue at every committee since the General Assembly, and members of the Group B of developed countries have said at every committee it is not necessarily the best way to handle the issue.

At its base, it is a disagreement over how much time and importance should be devoted to the Development Agenda at each of WIPO’s dedicated committees – and also, which of WIPO’s committees are to be considered “relevant.”

“We [member states] have to abide by” the decision of the General Assembly, a developing country delegate told Intellectual Property Watch, and for this a “separate, dedicated agenda item” is necessary. Governments “don’t have the authority as member states” to override the General Assembly decision, the delegate added.

A developed country delegate disagreed, saying that part of the negotiation process of the coordination mechanism involved developed countries agreeing to discuss and report on development agenda activities of relevant committees in exchange for not having a standing agenda item on this issue. The idea is to “not overburden” committees with this discussion, the delegate added.

At a recent meeting of the Committee on Development and Intellectual Property from 22-26 November, governments were unable to come to consensus on how precisely to implement the coordination mechanism across the organisation (IPW, WIPO, 27 November 2010), so these types of disagreements are likely to continue in future committees.

New Studies Question Conventional Wisdom On Enforcement

Several studies prepared for the ACE this year cast new light on the difficulty in quantifying and understanding IP enforcement issues.

These included a study from Loren Yager of the the US Government Accountability Office [pdf] which emphasised the lack or incompleteness of data on the economic impacts of counterfeiting and piracy. Commerce and Federal Bureau of Investigation officials rely on industry statistics “and do not conduct any original data gathering to assess the economic impact of counterfeit and pirated goods on the US economy or domestic industries,” despite the fact that the sources of industry statistics are hard to verify, the report says.

Three widely cited estimates from US agencies “cannot be substantiated,” said the report, including an FBI statistic on the amount US businesses lose to counterfeiting which the FBI said “cannot be corroborated” and a similar Customs and Border Protection figure which is used by the Department of Homeland Security despite being discredited.

A report from the International Chamber of Commerce [pdf] looked at consumer attitudes towards enforcement, finding that piracy is justified because legitimate products are too expensive, because punishment is unlikely, and because there is a general sense of social acceptability.

A study by Sisule Musungu [pdf] of think tank IQsensato highlights socio-economic and development variables on IP infringement and enforcement and called for a more nuanced analysis of the connection between poverty, inequality, and the need for imitation and protection of foreign rights.

There is also a literature review [pdf] on the economic effects of counterfeiting and piracy co-authored by Carston Fink, WIPO’s chief economist, a study on methods of disposal and destruction [pdf] of counterfeit goods in the Asia Pacific, a study on a South African anti-piracy venture [pdf], and report on media piracy [pdf] in emerging economies.