World Intellectual Property Organization members this month approved a range of reports from WIPO negotiating committees and took note of changes within the UN agency. Now with the annual WIPO General Assemblies over, work has begun on a hefty policymaking programme this autumn. Here’s a rundown of what’s coming.
The annual WIPO assemblies were held from 26 September to 5 October. The link to the Assembly is here (there were also individual assemblies for each of the treaties WIPO administers),
and final WIPO press release the assemblies is here.
Participants from a range of backgrounds had a positive reaction to the assemblies this year, and showed optimism for the coming year. But there are tough questions awaiting the negotiating committees and the organisation itself.
In little more than a week since the end of the assemblies, WIPO already has held meetings on evaluation, IP and competition policy, domain name dispute resolution, arbitration, and “Enabling Creativity in the Digital Environment: Copyright Documentation and Infrastructure.”
These will be followed by year’s end by substantive committee meetings on the Development Agenda, trademarks, copyright and exceptions, patents, and the launch of a new research platform, among other issues.
Next year’s annual WIPO General Assemblies are scheduled for 1-9 October 2012.
Development Agenda
The implementation of the 2007 Development Agenda remains an issue after the last meeting of the Committee on Development and Intellectual Property (CDIP), which oversees the Agenda’s implementation, stalled in disagreement (IPW, WIPO, 7 May 2011). A sticking point to be addressed is a proposal for a way to boost South-South cooperation, which aims to create discussions of IP rights as they relate to developing economies, and might include closed meetings of developing countries only. The CDIP will meet next from 14-18 November.
There were many discussions during the assemblies about the development dimension of various committees and activities at WIPO.
Perhaps indicative of the developing country message, Algeria’s statement to the assemblies was reported to say: “the current century was that of the knowledge economy, knowledge which had to be shared in order to promote the well-being of all rather than monopolized to ensure the technological domination of a few.”
A primary concern of developing countries at the assemblies was WIPO’s proposed budgeting for development-related activities. WIPO asserted that it would devote 20 percent of its budget to development activities, which was welcomed by developing countries. However, they had questions about how WIPO had reached that figure, asking for a better definition of what WIPO considers development-related. That will come for the next biennium’s budget proposal.
Copyright and Exceptions
A high point of the assemblies was the announcement that WIPO members will hold a top-level negotiation – a diplomatic conference – on a treaty for the protection of audiovisual performances (IPW, WIPO, 30 September 2011).
The AV treaty diplomatic conference will be planned on 30 November to 1 December, within an especially long meeting of the Standing Committee on Copyright and Related Rights (SCCR), from 21 November to 2 December. The diplomatic conference is expected to take place in 2012, possibly in summer.
Other issues on the SCCR work plan approved by the assemblies are to try to finalise preparation on a treaty on limitations and exceptions to copyright for print-disabled readers (IPW, Copyright Policy, 5 October 2011), limitations and exceptions for libraries and archives, and to continue work on a treaty on broadcasters’ rights. A special consultation on the broadcasting treaty will be held on 26-27 November. Last year’s consultations on the AV treaty were credited in helping lead to the breakthrough on that treaty.
Also in the context of the copyright committee meeting, on 30 November to 1 December the Advisory Committee on Enforcement (ACE) will meet. At the assemblies, calls increased from developing countries for the ACE to focus more on how to ensure balance in IP enforcement (IPW, WIPO, 4 October 2011).
Traditional Knowledge, Genetic Resources
At the assemblies, members once again renewed the two-year mandate of the Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC), though this time the recommendation for renewal came from the committee itself.
The IGC, in extended meetings over the last year, came close to agreement on texts for treaties on the protection of traditional knowledge and traditional cultural expressions (TCEs, or folklore), but were slower on text for genetic resources (IPW, WIPO, 22 July 2011). There is significant optimism among proponent countries that the committee will come back to the next General Assembly in October 2012 with a recommendation to hold a diplomatic conference.
The genetic resources issue has become one favoured by developing countries, in part because of the stasis at the World Trade Organization where they sought to get international rules requiring the disclosure of origin in patent applications as a way to reduce misappropriation of genetic resources. One Caribbean nation told the assemblies of the need to stop the “continued flagrant misappropriation of our natural and cultural resources.” Developing countries had proposed an amendment to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Now, said one developing country official, “the TRIPS language is in there” – in the WIPO text.
The US delegate told the assemblies that any instrument in these areas must have strong limitations and exceptions and must support the public domain.
The next IGC meeting is expected in February.
Patents
The Standing Committee on the Law of Patents (SCP) remains focussed on “broad-based” discussions, as one official put it, with a carefully constructed agenda. A closely watched committee, not the least because of patents’ enormous contribution to WIPO’s budget, the SCP is working on several proposals ranging from patent quality to public health to technology transfer to limitations and exceptions. (IPW, WIPO, 19 May 2011).
Member states at the assemblies spoke positively about the SCP work, but still in the background of the committee’s work is an old question of whether it should take up efforts to harmonise national patent laws to make it easier for patent application filers and processors. At the assemblies, Poland on behalf of the 27 European Union states, said it hoped during the next session that the committee could agree to consider international harmonisation, while by contrast South Africa on behalf of the African Group said it hoped that a proposal from Canada and the United Kingdom on patent quality is not aimed at patent harmonisation or creating an international patent.
Still, there was a positive feeling expressed at the assemblies by the various sides (those with the bulk of the world’s patents and those who would like to increase their share or maintain access to what is unpatented). Developed economies are pleased that the committee is on track to substantive discussions again, and developing economies are pleased that the track seems to lead more toward limitations and exceptions and ensuring patent monopolies do not stand in the way of access by poor populations.
Meanwhile, the recent US passage of patent reform legislation could be a “sea change” that brings change to the committee’s work, according to some sources.
The US law “provides a new opening” at WIPO on patent issues, a senior WIPO official told Intellectual Property Watch. “Up to now, the US has occupied something of an outlier on this, and hasn’t been able to provide leadership. Now it can.”
The SCP might also be the scene of discussions about WIPO’s increasing involvement in what it calls “global challenges,” such as public health, climate change and food security. Key differences in the global debates over those issues are related to intellectual property rights, and in particular, patents. WIPO has been stacking its global challenges division staff with patent proponents from developed countries, and developing countries are now calling for more thorough reports on what that division is doing.
The SCP will meet next from 5-9 December.
Trademarks, Industrial Designs, Geographical Indications
The WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) has picked up momentum as well.
The European Union and others called for a diplomatic conference on an industrial design law treaty in the 2012-2013 biennium. But developing country delegations such as Brazil felt the design issue to be preliminary, making it too soon to call for a negotiating conference. India suggested focussed discussions among all member states, and noted that less than a third of WIPO members have adopted the current system, with even less actively using it. A cost-benefit analysis by the secretariat was proposed as per the WIPO Development Agenda.
Specifically, India told the last SCT meeting that there are 58 member states in the Hague System for the International Registration of Industrial Designs, but 88 percent of the international registrations belong to only three developed countries and the European Community, and there are 29 developing and least developed countries without a single registration. India said it appears developing countries have not been able to benefit from the unified procedures under the system and it is unclear how they would benefit from the proposed new treaty that would harmonise the maximum criteria that national offices can request from applicants.
WIPO also is moving on issues related to trademarks on the internet, including looking at ways to involve internet intermediaries more fully. WIPO has taken a stance in favour of trademark holders in the global debate over the decision by the Internet Corporation for Assigned Names and Numbers (ICANN), which oversees technical aspects of the internet domain name system, to allow a significant expansion in the number of domains (such as .com) on the internet. More significantly, there is movement within WIPO to increase focus on internet intermediaries, or service providers, in stopping the flow of unauthorised content on the internet.
But several developing country delegations speaking at the assemblies showed a desire for the complex topic to be more fully discussed before WIPO proceeds in any direction. For instance, Brazil said it hoped for a balanced debate at the next SCT meeting, and more attention to subjects such as demands for internet access for citizens, consumer rights and the possible abuse of IP rights.
India praised the recognition by the committee of the need for information sessions on the issue of liability for internet intermediaries in cases of trademark infringement.
El Salvador highlighted the rise in attention to the protection of country names from being used in trademarks, another topic of discussion in the SCT.
The SCT will meet from 24-28 October.
New Treaty on GIs?
There was support at the assemblies, particularly among southern European countries, for increased work at WIPO on geographical indications (GIs), place names deriving from geographical locations. Italy mentioned the “stronger engagement” at WIPO on GIs, and drew attention to the continued push to add members to, and possibly modify, the Lisbon Agreement for the Protection of Appellations of Origin.
It appears those seeking engagement will get their wish. A meeting of the Working Group on the Development of the Lisbon System (Appellations of Origin) is scheduled for 12-16 December, and the WIPO secretariat has released a new text of a potential draft treaty or protocol on GI registration. The meeting agenda and texts are available here.
Standards
IP and standards, an area of particular interest to developed countries, was rekindled at the assemblies, unfreezing the 11-month suspension of the Committee on WIPO Standards that occurred in setting an agenda for the new committee (IPW, WIPO, 1 November 2010).
The suspension was broken by agreement on a “clarification” to the mandate, in the form of text in a “non-paper”, which states:
“The WIPO General Assembly reaffirmed and clarified its decision regarding the creation and mandate of the CWS at its 38th session in 2009, as contained in paragraph 249 of document WO/GA/38/20. The WIPO General Assembly also confirmed and clarified that the core mandate is that which is contained in paragraphs 11 to 16 of document WO/GA/38/10, and further agreed that, upon request from Member States, the Secretariat will endeavor to provide technical advice and assistance for capacity building to IP Offices by undertaking projects regarding dissemination of IP standards information. The Secretariat will provide regular written reports to the CWS on the details of such activities, as well as any other technical assistance and capacity-building activities that it undertakes in connection with the mandate, and provide the same to the General Assembly. The WIPO General Assembly decided that in order to encourage and facilitate the participation of technical experts from developing countries and LDCs in CWS meetings, the Secretariat will extend funding assistance for the participation of LDCs and developing countries, within existing budgetary resources.”
The suspension “was based on a misunderstanding of the mandate approved two years ago,” said Yoshiyuki (Yo) Takagi, WIPO assistant director general for global IP infrastructure, who provides oversight of the standards issue.
“Now member states have reaffirmed the mandate which was agreed two years ago with a clarification,” he told Intellectual Property Watch. The committee will deal with matters purely related to standards, as well as implementation of standards related to technical assistance and capacity building, and help facilitate participation of developing countries in meetings paid by WIPO.
Takagi said the focus on development takes into account that the absorption capacity for standards of some developing countries is “quite low.” It took years to make countries aware of this lack of capacity, he said.
He highlighted the reality for many developing countries: poorly managed, paper-based registration. “Developing countries want to modernise these procedures” and e-government, he said. “In order to make these things happen, they have to have standards.”
The next standards committee meeting will be held in 2012.
Arbitration and Mediation Centre
WIPO has been working to capitalise on its practice of resolving domain name disputes on the internet, and also has taken to playing an advocacy role for trademark holders in relation to internet policy. In particular, the secretariat has taken positions opposing the review of Uniform Dispute Resolution Procedures (UDRP), and the exponential introduction expected in 2012 of possibly hundreds of new generic top-level domains (gTLDs), like .com. It said these will present opportunities but also “serious legal and practical challenges for intellectual property rights owners and users.”
Since 1999, the WIPO Arbitration and Mediation Centre has administered more than 21,000 cases under the UDRP. The 2,696 complaints filed at WIPO in 2010 represented an increase of 28 percent over 2009, according to the secretariat. It said the global nature of its services is demonstrated by the fact that in 2010, named parties to WIPO cases represented over 112 countries.
There has been a rise in disputes relating to country-code top-level domains (such as .uk), from 1 percent of all cases in 2000, to 15 percent in 2010.
A shift in domain name registration, WIPO said in its report the assemblies, has been from straight “squatting” on another’s domain name and demanding payment, to “domainers” who derive income from large-scale automated registration of domain names. Another development is the use of registration services that hide the owner, now some 25 percent of registrations. This, along with questionable Whois data recorded upon registration, presents a challenge for identifying a respondent in UDRP proceedings, WIPO said.
During the assemblies, the United States said it remains concerned about a mechanism to protect IP on the internet, and said a review of the UDRP should wait until after the new gTLD programme can be evaluated. Switzerland highlighted the need for a mechanism to protect monopolies on geographic and country names, and said it was interested in setting up a group to look at that issue.