Counterfeit Congress Gives Nod To Developing Country Concerns

PARIS – Sustainable development made what some described as a welcome intrusion at the global congress on counterfeiting and piracy during a dedicated session on Wednesday, with discussions on how to conduct enforcement efforts while taking into account developing country specificities.

The sixth Global Congress on Combating Counterfeiting and Piracy took place in Paris on 2-3 February. Amidst calamitous predictions of economic loss, the event put the emphasis on energetic enforcement measures and global cooperation against infringement with little room given, according to some sources, to developing country perspectives.

The Congress is co-organised by the World Intellectual Property Organization, the World Customs Organization, and Interpol, the police agency. This year, WIPO was the organiser of the congress.

Johannes Christian Wichard, deputy director general for global issues at WIPO, said intellectual property is not an end in itself but a tool to foster innovation and trade efficiency. He spoke at a 3 February session on IP enforcement and sustainable development which drew a meagre audience.

It is a well-known fact that counterfeiting and piracy have a “devastating effect” on the development of African economies, said Gift Sibanda, director general of the African Regional Intellectual Property Organization (ARIPO). Counterfeiting not only impairs innovation, leads to loss of employment and income, presents hazards to consumer safety, but also is linked to criminal activities and terrorism, as “counterfeiters do not work alone,” Gift said.

This is a war that is difficult to fight, he said, as it assumes different forms, and technological disparities, high levels of illiteracy, lack of political will, and the absence of a centralised enforcement system render developing countries vulnerable to counterfeiters.

The WIPO Development Agenda can be instrumental in promoting development in Africa but the continent needs support in infrastructure and legal regimes, he said. A centralised documentation system is also needed, as well as international collaboration on enforcement.

Ricardo Mélendez-Ortiz, chief executive officer of the International Centre for Trade and Sustainable Development, acknowledged the effort of WIPO to include the session in the context of the congress, and said the question should not be whether IP rights should be enforced but how “we go about it.”

The World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is international community tool for minimum protection of IP and it should be reminded that the pursuing of better enforcement was the main driver for negotiations of TRIPS, he said. But it should also be noted that was the world of the 1980s, and the world of today is very different. Many efforts are complementing TRIPS in ensuring enforcement of IP and many of those efforts go beyond standards and provision of TRIPS, like those found in bilateral trade agreements.

In the context of bilateral trade agreements, he said the economic partnership agreement between the CARIFORUM States and the European Commission marked a new approach by incorporating sustainable development objectives.

The relationship between IP and development is not a straightforward one, he said. The detention of generic medicines by customs authorities highlights a number of public health policy issues. A clear distinction needs to be made between counterfeit, substandard and other types of products.

In order to move forward, the international community needs to be very clear on “what it is it is fighting,” Mélendez-Ortiz said, adding that there should not be any ambiguity about counterfeit medicines. There is a need for more empirical evidence on IP and more specifically on the economics of counterfeiting, in particular affecting developing countries and the economics of combating counterfeiting, he said. IP rights are private rights and should be addressed in that manner. Counterfeit and piracy need to be addressed but in a way that does not affect public goods, he added.

At the World Trade Organization, sustainable development is an ongoing concern, said Antony Taubman, director of the Intellectual Property Division at the WTO. One of the issues of enforcement is the fair and appropriate way of distributing the enforcement burden, he said. The TRIPS agreement requires that the tools for enforcement be effective, fair, and balanced, but does not provide a users guide on how to use those tools.

Enforcement cannot be done in an identical manner across countries, he said, adding that it was a matter of discretion, skills, and know-how resulting from capacity building. Positive guidance can be found in Article 7 of TRIPS, which states that the protection of IP rights should be to the “mutual advantage of producers and users of technological knowledge in a manner conducive to social and economic welfare, and to a balance of rights and obligations,” he said. That is consistent with sustainable development in practice if it is done in the “right way,” he added.

TRIPS Article 69 also recalls international cooperation in enforcement of IP rights, he said.

Gates Grantees and IP

The Bill and Melinda Gates Foundation is counting on innovation coming from the developing world, said Aline Flower, associate general counsel global development for the foundation. IP is essential to effective sustainable development, she said. The development of products has “everything to do with IP,” and “we expect our grantees to strategically manage IP,” she said.

A Zambian minister in the audience described the efforts of the country in revising their industrial property and copyrights laws. But Zambia, she said, like many other countries, “has been the dumping ground for counterfeit products,” leading to health hazards for the population. After making the legal amendments, she asked how enforcement can be done if counterfeit products are still getting into the country, as cheaper goods will still attract favourable attention from the public.

A developing country delegate told Intellectual Property Watch that counterfeit medicines are killing people every day in Africa and a solution needed to be found. African countries need capacity building and financial help to address the problem. The setting up of pharmaceutical facilities, whether brand name or generic, in the countries would help regulatory authorities to ensure the quality of the drugs on the local markets, he said.