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Info Service on Intellectual Property Issues (Mar14/03) WIPO: Developing Countries Continue Call for Balanced IP Enforcement Geneva, 10 March (Alexandra Bhattacharya) – Differences remain between developing and developed countries over a more balanced approach to enforcement of intellectual property rights. The 9th session of the Advisory Committee on Enforcement (ACE) of the World Intellectual Property Organization (WIPO) was unable to reach agreement on new topics for discussion for the next session. Developing countries, for their part, maintained their stance against further dilution of their original proposal on future work which aimed to introduce a more balanced discussion on intellectual property (IP) enforcement, including the consideration of flexibilities and the different socio economic realities of countries. The lack of consensus means that the two topics already discussed during the 9th session will be on the agenda again for next year. These topics are:
The ACE met on 3-5 March 2014 in Geneva. [The ACE was established by the WIPO General Assembly in 2002. The Committee's mandate is limited to discussing technical assistance and coordination in the field of enforcement and specifically excludes norm-setting.] The ACE since 2009 has also agreed to approach the issue of enforcement of intellectual property rights in a more holistic manner, focused on identifying the underlying elements to create an enabling environment to promote respect for IP. This new approach re-asserts that the means to enforce intellectual property rights should be in line with the objectives of Article 7 of the World Trade Organization’s TRIPS Agreement, as stated in recommendation 45 of the WIPO Development Agenda. Development Agenda Recommendation 45 calls on WIPO “To approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns, with a view that ‘the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations’, in accordance with Article 7 of the TRIPS Agreement.” However, there have been concerns from developing countries that the topics discussed in the ACE continue to promote a one dimensional approach to IP enforcement without taking into account the complex relationship between development and IP enforcement. There are also concerns that the discussion within the ACE had not been necessarily balanced and does not include the discussion of IP flexibilities available under legal frameworks nor take into account socio economic realities in countries. The DAG proposal for future work was an attempt to rectify this situation. The discussion on the future work of the Committee during the last day of the session (and also subject to informal consultations), centered on the Development Agenda Group (DAG) proposal and the Group B (developed countries) proposal, submitted during the 8th session of the ACE. The DAG proposal calls for a discussion on WIPO’s enforcement related technical assistance to build respect for IP and in particular the discussion of: (i) an evaluation of how WIPO has been promoting the concept of “building respect for IP” in its technical and legislative assistance activities, (ii) an inventory of “success stories” of technical assistance and capacity building in this area, (iii) legislative assistance with a view to preventing the abuse of enforcement procedures such as “sham litigation”, and (iv) legislative assistance in drafting national laws of enforcement that take into account the use of flexibilities as well as the different socio-economic realities and the differences in the legal traditions of each country. The Group B proposal calls for discussion on awareness building activities as a means for building respect for IP, especially amongst school aged children and students. No Consensus on Future Work At 4 pm on the last day of the meeting, the Chair of the Committee, Ambassador Thomas Fitschen, Deputy Permanent Representative of Germany, put forward the results of informal consultations on the future work program. He said that flexibility had been shown by all sides but especially by the DAG which had shown great compromise with respect to their proposal. The Chair said that on the table were the following five proposals on which the Committee had to decide on:
Japan on behalf of Group B said that the Group could agree only to the first part of the DAG proposal namely “Exchange of information and national experience on WIPO's enforcement related technical assistance to build respect for IP”. It could not however, agree to the “specific aspects” of the DAG proposal namely “including legislative and administrative assistance which helps to prevent the abuse of IPR enforcement procedures and to use the flexibilities of the IP system while taking into account the different socio-economic realities and the diversity and particularities of different legal tradition of each country”. The Group was of the opinion that the inclusion of these elements was “unbalanced” and might “send the wrong message” that some aspects of the discussion were more important than others. Japan said that a reference to DA Recommendation 45 in the second half of the proposal instead of these elements would accommodate the Group’s concerns. This view was also reiterated by the European Union which stated that it did not see the need for the explicit references to these elements. It added the abuse of enforcement procedures had already been discussed within the ACE and other forums. Czech Republic on behalf of CEBS (Central Europe and Baltic States Group) also said it could not accept the second half of the DAG proposal with reference to the specific elements. It also queried the rationale behind including their inclusion. Egypt, on behalf of DAG, said that the statement by Group B and EU was repetitive of points already made during the informal consultations. It reminded the Committee that DAG had previously submitted a more detailed proposal but in order to make progress had accepted the language as presented by the Chair and it urged Group B to do the same. Pakistan said that discussion on IP enforcement awareness should balance IP rights and social responsibility. It expressed its support for the DAG proposal noting that it highlighted the need to treat IP enforcement holistically and include public interest considerations. Kenya, on behalf of the African Group, said that there had been a number of proposals and it was “only prudent to focus on what we had not had”. It added that at the end of the day there was a need for balance in the term “building respect for IP”. It said that overly broad language could lead to areas being forgotten and therefore in order to regain a balance in the discussion there was a need to refer to specific elements as the DAG proposal had done. Brazil also urged Group B to reconsider its position adding that a number of elements had already been dropped from the original DAG proposal and that any further changes would tilt the balance. Uruguay, on behalf of GRULAC (Latin American and Caribbean Group), said that it was satisfied with the DAG and Group B proposal “as they stand” and that the two proposals reflected the realities of diverse countries and interests. After some further informal consultations, at around 5 pm on 5 March, the Chair in an attempt to forge compromise on the DAG and Group B proposals presented the following reformulations (changes in italics):
Egypt on behalf of DAG said that this new language was not acceptable to the Group and it had preference for the language as presented previously at 4 pm. It noted that the new language dropped references to “abuse of IPR enforcement procedures” and “flexibilities”. It noted that the Prevention of abuse of IP rights was found in Art 8, of the TRIPS Agreement and that the Use of TRIPS flexibilities were part of the Development Agenda. It further noted that if there was agreement for “broad language” in the proposals, the Group B proposal should not include the specific reference to “school aged children and students”. Kenya, on behalf of the African Group, also expressed support for the proposal language as of 4 pm. It added that the new language did not achieve the required balance. It said that, “we have heard a lot about hard (IP) enforcement, there is a need to hear about soft enforcement as well.” It added that the ACE was only a forum for sharing information and there was no obligation to implement. It said that if “we refuse to agree on what is fairly harmless, we are wasting our time”. It underlined that it was high time to decide on a new work program and by having this stalemate the mandate of the Committee was not being respected. It also reiterated the need not to “blanket things” and to have an honest discussion. South Africa, Iran, Jordan also echoed the same views stating that they could not agree on the new language and expressed preference to the language as at 4 pm. Japan, on behalf of Group B, said that it could not agree to the 4 pm version of the DAG proposal. Due to the lack of time and no consensus, it was decided that the DAG proposal (in its original form as submitted in the last session), the Group B proposal and the proposal by Poland, the United Kingdom and the United States on the specialization of the judiciary and intellectual property courts would be discussed under future work during the next session of the ACE. Exchange of Information and WIPO’s Activities on Enforcement The first two days of the meeting had been devoted to expert presentations (based on submitted papers) on the two agreed topics for discussion. The ACE for the first time also hosted an exhibition on national experiences in “Preventive Actions or Successful Experiences to Complement Ongoing Enforcement Measures”. The presentations under the first topic of “Practices and operation of alternative dispute resolution systems in IP areas included the presentation of a paper titled “ADR as a tool for IP enforcement” by a US lawyer, national IP office experiences (Cambodia, Mexico, Republic of Korea, Spain) on the use of ADR initiatives, and industry experiences with ADR. The presentations under the second topic of “Preventive actions, measures or successful experiences to complement ongoing enforcement measures with a view to reducing the size of the market for counterfeited or pirated goods” included the presentation of national experiences (Costa Rica, Slovakia, Trinidad and Tobago, South Africa, and the League of Arab States) regarding national IP awareness raising and campaigns for “Building respect for IP”. The discussion also included presentations from experts (from Poland, Peru and the EU) on “New Business Models” and “Preventive Measures in the Online Environment” by experts from Russia, and the Motion Picture Association from the US. The ACE also discussed the agenda item “Recent Activities of WIPO in the Field of Building Respect for Intellectual Property (IP)” which was based on a report submitted by the Secretariat which provided an overview of its activities in IP enforcement in the specific areas of legislative assistance, capacity building activities, international cooperation and coordination and publications. Brazil requested that more information on each activity undertaken by the Secretariat be made available on the WIPO website. Nepal also queried how LDCs could benefit from WIPO’s enforcement activities. Third World Network (TWN) said that it remained unclear whether or not the content of WIPO’s activities are appropriate, in that flexibilities are adequately addressed and development concerns given due weight. TWN called for an independent review of WIPO’s work on IP enforcement to assess the orientation of its enforcement activities, as well as whether the essence of Recommendation 45 of the Development Agenda was being mainstreamed in its enforcement related activities. It also reiterated its call for more transparency in WIPO’s activities on enforcement. Contribution of the ACE to the implementation of Development Agenda Recommendations Egypt, on behalf of DAG, and supported by Kenya, requested that an additional agenda item be included, namely, “Contribution of the ACE to the implementation of the respective Development Agenda Recommendations”. The Chair stated that since this agenda item had also been requested to be added during the last meeting of the ACE, it came as “no surprise”. Japan, on behalf of Group B, said that it could agree to the addition of the agenda item “based on the understanding that it was not to become a standing or permanent agenda item”. This view was also shared by the Czech Republic, on behalf of CEBS (Central Europe and Baltic States Group). Egypt, on behalf of DAG, said that there was still a long way ahead in order to fully implement DA considerations within the work of the ACE. It said that implementation of the DA required both paradigm shifts and change in organizational activities. It expressed the hope that future activities of the ACE would continue to improve the work of the Committee in this direction. It underscored that the guidelines of the DA were of interest to all member states South
Africa, on behalf of the African Group, said that the adoption
of the 45 DA Recommendations “was a watershed moment” and the sending
of a clear message that there was a need to address developmental
concerns by WIPO. It called for an agreement to have a standing agenda
item which would allow the ACE to report on its contribution to DA
implementation. It also reiterated the need for a balanced approach
in the work of the ACE in line with DA Recommendation 45. Czech Republic, on behalf of CEBS, also referred to the need for “a predictable environment for investment” and referred to the 2013/ 2014 Global Competitiveness Report (published by the World Economic Forum) which includes the criteria of quality of institutions. Opening Statements Kenya, on behalf of the African Group recalled that the ACE was established as a forum for discussions and exchange of information on IP enforcement issues, and in particular, in relation to technical assistance and cooperation and had no mandate on norm setting activities. In this regard, the African Group hoped that the committee would remain true to its mandate so that it could continue to serve the purpose for which it was intended for. Kenya reiterated that the committee should continue to serve as a forum for discussions and exchange of information and should avoid making summaries of debates in a manner which may be construed as recommendations for norm setting, standardization or prescribing a certain course of action. It further added that the building respect of IP should be undertaken within the context of DA recommendation No. 45 so as to ensure that IP enforcement took into account broader societal interests and promoted technological innovation and transfer of technology. In this regard, Kenya said the African Group would like to see a balanced debate in the committee which reflected both public and private interests. It was of the opinion that discussions should therefore take into account the linkages between different levels of development and access to, and transfer of technology and knowledge, affordability of products, flexibilities existing under the TRIPS agreement as well as the legislative advice offered to developing countries. Brazil stated that one of the indicators for the holding of a balanced policy dialogue was taking to account development related concerns. It noted that sometimes “we equate respect of IP with repression of infractions” but there was need to also discuss existing flexibility and education. It added that WIPO as a UN specialized agency had all the credentials to provide “broad and balanced technical assistance (TA)” to all the members having in mind the specificities of each countries. It referred to the DAG proposal on future work and added that TA was an important part of the ACE mandate. It added that there was a particular need to take stock of TA done with respect to legislative assistance. Egypt, on behalf of DAG emphasized the need to ensure that the work of the ACE was in line with DA Recommendations (particularly DA Recommendation 45) and TRIPS agreement Article 7 which states that “The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.” Uruguay, on behalf of GRULAC, said that the mandate of the ACE went beyond the discussion on combating counterfeiting and piracy but also focused on training programs and capacity building with respect to IP enforcement. It also emphasized the importance of the development of a balanced IP system. Japan, on behalf Group B, reiterated the importance of the ACE and the overall issue of IP enforcement. It stated that without the co existence of effective enforcement mechanisms IP could not be use to promote development through innovation. It said that therefore, the topic of IP enforcement should be of common interest to both developing and developed countries. It stressed that it was important to “learn lessons from each other”. Japan added that it was looking forward to learning about experiences about the practice and operation of ADR in the context of IP areas, stating that “ADR could provide speedier and cost effective options”. With regard to the future work of the committee, Group B supported the joint proposal by Poland, the UK and the US for a discussion on the specialization on judiciary and IP courts stating that the exchange of experiences on the subject “fit into the core mandate of the committee”. Czech Republic, on behalf of CEBs, stressed the importance about the need for better understanding of the enforcement practices of countries and the socio-economic impact of IP infringement. It also supported the Group B proposal on the table with respect to future work of the Committee on awareness building activities as a means of building respect for IP rights among school children and students. It also supported the joint proposal by Poland, UK and US for a discussion on the specialization on judiciary and IP courts. The US stated that the ACE provided a valuable forum for the exchange of information and that it was currently working closely with WIPO with respect to its shared commitment for the improved enforcement of IP. It also referred to its proposal on future work regarding the specialization of the judiciary. It noted that the creation of specialized courts would create a “more efficient environment”. The EU said that it recognized that both EU and individual national policies needed to be “outward looking” with respect to IP enforcement. It said that this was especially necessary due to the existence of interconnected network “binding us all together”. It stated that it continued to support the work of the ACE and particularly attached importance to how enforcement polices could link together more effectively. Third World Network (TWN) in its intervention stressed that it was critical that WIPO’s activities in the area of IP enforcement did not affect the enjoyment of human rights such as right to food, right to health, right to education and the right to science and culture. It expressed concern that WIPO’s IP enforcement activities were not being guided by DA Recommendation 45 and that a maximalist approach to IP enforcement hampered the technological catch up process of developing countries as well as legitimate business. TWN said that there was a need to shed double standards and allow developing countries to use the flexibilities effectively and efficiently. Towards this end ACE should also initiate a discussion on the flexibilities existing with regard to IP enforcement. The next session of the ACE is expected to be held in 2015, at a date yet to be determined.
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