A Project of the American Enterprise Institute and the Federalist Society

World Intellectual Property Organization Development Agenda Meetings Daily Report - Feb 20, 2007


The World Intellectual Property Organization (WIPO) is an international organization dedicated to promoting the use and protection of works of the human spirit. These works -- intellectual property -- are expanding the bounds of science and technology and enriching the world of the arts. Through its work, WIPO plays an important role in enhancing the quality and enjoyment of life, as well as creating real wealth for nations. With headquarters in Geneva, Switzerland, WIPO is one of the 16 specialized agencies of the United Nations system of organizations. It administers 23 international treaties dealing with different aspects of intellectual property protection. The Organization counts 183 nations as member states.

Last year the Federalist Society received official observer status at the World Intellectual Property Organization. This week, Society Executive Vice President Leonard Leo reports from the WIPO meetings on "Proposals Related to a WIPO Development Agenda." You may view a copy of his intervention before the assembly here. And, what follows is the report he has filed thus far from Geneva.

There are over 100 proposals relating to what action WIPO should undertake to advance the development agenda. They are contained in two Annexes and are divided into Clusters A through F, in ascending order of contentiousness.

Cluster A largely involves proposals that would facilitate WIPO providing technical assistance to countries that are in the process of building or enhancing their IP protection systems. Cluster B proposals relate to norm-setting, public policy, and public domain issues. Cluster C initiatives deal with technology transfer, information technology, and access to knowledge. Cluster D deals with assessments, evaluations and impact studies. Cluster E proposals take on mandate and governance matters, and Cluster F contains "other issues," the most notable being that WIPO "approach intellectual property enforcement in the context of broader societal interests and development-related concerns, in accordance with Article 7 of the TRIPS agreement.

Much of the discussion on Tuesday, February 20 focused on Proposal 17: "Consider the protection of the public domain within WIPO's normative processes." Knowledge Ecology International expressed concerns about "inappropriate efforts to encroach upon the public domain that create competition law problems." Tom Giovanetti of IPI stated a different concern relating to the motivations behind the public domain focus: "Now, everyone recognizes the importance of a rich public domain, and WIPO already gives the public domain due consideration. But there is no evidence that the public domain is in any danger that requires an addition to WIPO's mandate. Rather, this is simply a bit of rhetoric that is being used by opponents of Big IP to raise fear, uncertainty and doubt about the virtues of intellectual property." Giovanetti concluded: "Here is a prediction: If WIPO adopts the principle that the public domain should be a major factor in WIPO norm-setting, every time WIPO attempts to set a norm it will be opposed on the grounds that it threatens the public domain. Concerns about the public domain will be used to defeat technical protection measures, protection for webcasters, and other means of battling piracy."

Chile reacted briskly to the IPI intervention. It noted that the public domain is "vital, particularly in developing countries," and further maintained that IP always has the potential to encroach upon the public domain.

Other items to watch:

-- Annex A, Proposal 19, on "norm-setting." Calls upon WIPO to "recognize different levels of development of Member States and reflect a balance between benefits and costs of any initiative for developing and developed countries." Knowledge Ecology International suggested the creation of economic bureaus within WIPO to undertake cost-benefit analyses.

-- Annex A, Proposal 20. Calls upon WIPO to "preserve the interests of the society at large, and not only those of IP owners in norm-setting activities." This can be used as a part of a broader effort to diminish the influence of industry and IP owners that historically has existed within WIPO. In this regard, see also Annex A, Proposal 39, which calls for the adoption of "UN system criteria regarding NGO acceptance and accreditation." Some have expressed concern that the use of such UN criteria in the context of WIPO could have the effect of excluding business and industry groups. Brazil, in the context of discussing its view that WIPO needs to provide more than IP rights holders a voice and influence, endorsed this proposal.

-- Annex A, Proposal 28. "To promote measures that will help countries combat IP related anti-competitive practices." Italy, for example, voiced concern that the reference to anti-competitive matters is too vague. Germany made the point that some anti-competitive element is naturally inherent in an IP system.

-- Annex A, Proposal 32. It states that "WIPO should deepen the analysis of the implications and benefits of a rich and accessible public domain." See the public domain discussion above.

-- Annex A, Proposal 38. This proposal calls upon WIPO "to undertake measures to ensure wider participation of civil society and public interest groups in WIPO?s activities." Italy expressed concern that this proposal could be used to call for civil society participation in Member State negotiations over treaties and other documents, and maintained that such expanded participation would be unacceptable. Brazil supported the measure, though, and felt this was important to developing countries that have a harder time mobilizing their own national sectors.

-- Annex A, Proposal 40. "To approach intellectual property enforcement in the context of broader societal interests, and development-related concerns, in accordance with Article 7 of the TRIPS Agreement." Brazil said, "There is a back-and-forth reference to the TRIPS Agreement that cannot be ignored." Other countries, such as Italy, expressed the view that this proposal is overbroad, and that the role of TRIPS will differ amongst different WIPO treaties.

Argentina is especially aggressive in moving WIPO in a direction that is less hospitable to IP protection. Consistent with this approach, Argentina placed a premium on proposals relating to enforcement of TRIPS Article 7, studies of the cultural impact of the use of IP, and technology and benefits-sharing.

Germany, on the issue of proposals relating to technology transfer, stressed that decisions here largely should be confined to private sector entities, as it is they who largely create IP and own it.