[governance] Sign-On letter to WIPO on IP Enforcement

Mon Nov 28 12:33:29 EST 2011

Very important. Thank you very much for sharing, Sangeeta!

Best wishes,
Marília

On Mon, Nov 28, 2011 at 7:11 AM, Sangeeta <sangeeta at twnetwork.org> wrote:

>
>  Dear All,
>
> This week on 30th November to 1st December the WIPO Advisory Committee on
> Enforcement (ACE) will be meeting.
>
> In light of the enforcement activities of WIPO, i.e. Its unbalanced
> approach, links to industry and propaganda on public health and safety,
> we thought it would be good to send a letter to the DG in time for the
> WIPO ACE discussions.
>
> Please see the letter below. In the letter we also challenge WIPO's
> partnership with BASCAP and INTA.
>
> If you would like to sign on to the letter as an organization please send
> us the name of your organization, country by 29th
> November 2011. Please write to *sssangeetash at gmail.com* or  *
> ssangeeta at myjaring.net
> *
> Looking forward to your support.
>
> Regards
> Sangeeta Shashikant
> Third World Network
> -------------------------------------------------------------------------
>
> LETTER TO MR. FRANCIS GURRY
> DIRECTOR GENERAL OF WORLD INTELLECTUAL PROPERTY ORGANIZATION
>
> 29th November 2011
>
> Mr. Francis Gurry
> Director General
> World Intellectual Property Organization
>
> Intellectual Property Enforcement activities in WIPO
>
> Today it is widely known that proponents of a “maximalist agenda” on
> intellectual property (imade up of OECD businesses and governments) are on
> a campaign to increase IP protection and enforcement far beyond the minimum
> standards of the TRIPS Agreements in ways that are "TRIPS-Plus-Plus"[1]
> <#_ftn1> . However such an approach disregards the development dimension,
> undermines public interests and compromises fundamental human rights such
> freedom of expression over the internet.[2]
>
> In 2007, the WIPO General Assembly adopted Recommendation 45 of
> Development Agenda that explicitly mandates 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.”
>
> A number of other recommendations call for more transparency in WIPO’s
> activities particularly its technical assistance activities and stress on
> the need to infuse development considerations into WIPO’s activities and
> debates.
>
> Against this background, the undersigned are seriously concerned with
> WIPO’s approach to IP enforcement. In particular we would highlight the
> following concerns:
>
> 1. Transparency: Despite the adoption of Rec. 1 and 5, little information
> is provided on WIPO’s website on technical assistance activities undertaken
> by WIPO. For instance in the Annex of WIPO/ACE/7/2, WIPO provides a list of
> activities it has undertaken in the area of IP enforcement however no
> information is available on the nature of such activities including
> participants lists, lists of speakers, content presented, outcome of the
> meetings etc. In fact many of the meetings mentioned in the Annex are not
> even listed on WIPO’s website. The lack of transparency is unbecoming of an
> intergovernmental organization and undermines implementation of Development
> Agenda in WIPO.
>
> 2. Unbalanced Approach to Enforcement & Conflicts of Interest: Evidence
> available suggests that WIPO’s approach to enforcement is unbalanced,
> lacking a development and public interest orientation. The limited
> information available on certain WIPO’s enforcement activities, suggests
> that its activities are aimed at protecting corporate interests rather than
> ensuring a balanced debate that addresses the development dimension
> (including flexibilities available, developmental implications of excessive
> or inappropriate enforcement standards, safeguards against abusive
> enforcement practices), protects public interests and takes into account
> the socio-economic realities of beneficiary countries.
>
> The recently released external assessment of WIPO’s technical assistance
> also notes the lack of activities in WIPO that ensures efforts to address
> counterfeiting and piracy are aligned with national needs and conditions.
> The Review also found that certain WIPO’s tools on national IP strategy
> placed over emphasis on IP enforcement with questions that would lead
> beneficiary countries to think that its enforcement provisions were
> inadequate.
>
> The unbalanced approach to IP enforcement is further reinforced by WIPO’s
> continuous partnership with entities whose interests’ lies in ever-stronger
> IP enforcement. For instance the Global Congress Combating Counterfeiting
> and Piracy is organized by WIPO in partnership with intergovernmental
> organizations such as Interpol, the World Customs Organization, the World
> Intellectual Property Organization as well as industry related stakeholders
> i.e. International Trademark Association (INTA) and Business Action to Stop
> Counterfeiting and Piracy (BASCAP).
>
> We are of the view that WIPO’s partnership with such industry related
> stakeholders hampers its ability to take a balanced approach to IP
> enforcement, and undermines Development Agenda particularly implementation
> of Recommendation 45 of Development Agenda. Further such one-sided pro
> business partnership raises issues of conflict of interests. WIPO being an
> intergovernmental and a specialized agency of the UN must take immediate
> measures to ensure that all its activities are evidence based, free of
> conflicts of interests and undue influence of the industry.
>
> 3. Public Health and Safety: The link between IP enforcement and public
> health and safety has been promoted with the aim of frightening people into
> accepting inappropriate standards of IP enforcement agenda. In reality, the
> link between IP enforcement and public health and safety is questionable
> and tenuous at best. In fact an IP enforcement framework will not deliver
> effective protection of public health as IP rights are not granted on the
> basis of the quality and safety of the product. Instead inappropriate
> standards of IP enforcement are likely to hinder public health particularly
> access to medicines.
>
> This has been amply demonstrated by the seizures of quality generic
> medicines at various European ports as a result of inappropriate standards
> of IP enforcement. In the East African region several anti-counterfeiting
> bills have been enacted or are in the process of being enacted. And while
> the proclaimed rationale for such legislation is to protect the public from
> unsafe products, these bills are in actual fact only about protecting the
> rights of IP holders to the detriment of access to affordable generic
> pharmaceuticals. Most of these bills define “Counterfeit” products as being
> substantially similar or identical to IP protected products, which
> effectively makes every generic pharmaceutical a counterfeit. In Kenya,
> enactment of the Anti-Counterfeit Act 2008 has been challenged by people
> living with HIV/AIDS on the grounds that enforcement and application of the
> Act will deny them access to affordable essential medicines and thus deny
> their Right to Life.
>
> Further we stress that addressing the issue of substandard, poor quality
> and unsafe medicines (also often labeled as “counterfeit medicines”) is not
> within the mandate of WIPO but a responsibility of the World Health
> Organization. Moreover dealing with the problem of “counterfeit medicines”
> requires a focus not on IP enforcement but on building regulatory capacity
> and ensuring access to affordable medicines.
>
> Following from the above-mentioned concerns, we demand that:
>
> ·      WIPO urgently make publicly available all information (e.g.
> participants and speakers’ list, presentations, list of documents
> distributed, outcome of the meetings), with regard to WIPO’s activities in
> the area of IP enforcement. Where information is protected due to its
> confidential nature, this should be mentioned explicitly.
>
> ·      WIPO review its partnership with industry related stakeholders and
> take measures to ensure that its enforcement activities are evidence based,
> objective, free conflicts of interests and undue influence of the industry
> related stakeholders.
>
> ·      WIPO ensures that all its enforcement activities take a balanced
> approach, do not undermine existing flexibilities; comprehensively
> addresses development and public interests considerations and takes into
> account the socio economic realities of countries.
> *
> *·      WIPO ceases to push for IP enforcement on the grounds that it
> protects public health and safety.
> *
> Signatories
>
> Act UP Paris
> AIDS ACCESS Foundation
> All India Drug Action Network, India
> All Nepal Peasants' Federation, Nepal
> Berne Declaration, Switzerland
> Center for Health, Human Rights and Development, Uganda
> Center for Technology and Society at FGV Law School, Brazil
> Drug Study Group, Thailand
> Diverse Women for Diversity, India
> Foundation for AIDS Rights, Thailand
> Foundation for Consumers, Thailand
> FTA Watch
> Health Action International Africa
> Health and Development Foundation, Thailand
> Indonesia AIDS Coalition, Indonesia
> Initiative for Health & Equity in Society , India
> IP Justice, USA
> La Quadrature du Net (France / Europe)
> LES ANGES DU CIEL,
> **Organization Butere focused women in development (BUFOWODE) Kenya
> Oxfam
> Red Mexicana de Accion frente al Libre Comercio (RMALC), Mexico
> Research Foundation for Science Technology & Ecology, India
>  Rural Pharmacists Foundation, Thailand
> Thai Holistic Health Foundation, Thailand
> Thai NGO Coalition on AIDS , Thailand
> Thai Network of People living with HIV/AIDS (TNP+), Thailand
> Third World Network
> *
> [1] <#_ftnref1>  For an overview of anti-counterfeiting initiatives see
> Susan Sell (2008), “The Global IP Upward Ratchet, Anti-counterfeiting and
> piracy enforcement efforts: The State of Play” available at *
> http://www.iqsensato.org/wp-content/uploads/Sell_IP_Enforcement_State_of_Play-OPs_1_June_2008.pdf
> *. See also Ermias Tekeste Biadleng and Viviana Munon Tellez (2008) “The
> Changing Structure and Governance of Intellectual Property Enforcement”
> Research Paper 15, South Centre, p. 25 available at www.southcentre.org
> <http://www.southcentre.org> <http://www.southcentre.org>  <*
> http://www.southcentre.org*>
>
>  [2] See the joint declaration on Freedom of Expression and the Internet <
> *
> http://www.law-democracy.org/wp-content/uploads/2010/07/11.06.Joint-Declaration.Internet.pdf
> *>  issued by the UN Special Rapporteur on Freedom of Opinion and
> Expression, the Organization for Security and Co-operation (OSCE)
> Representative on Freedom of the Media, and the Organization of American
> States (OAS) Special Rapporteur on Freedom of Expression, and the African
> Commission on Human and People’s Rights (ACHPR) Special Rapporteur on
> Freedom of Expression and Access to Information.
>
>
>
>
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-- 
Centro de Tecnologia e Sociedade
FGV Direito Rio

Center for Technology and Society
Getulio Vargas Foundation
Rio de Janeiro - Brazil
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