[governance] At WIPO, A Complex Fight Against Counterfeiting, Piracy

[Riaz K Tayob]

    At WIPO, A Complex Fight Against Counterfeiting, Piracy

Published on 21 December 2012 @ 7:35 pm

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By Catherine Saez <http://www.ip-watch.org/author/catherine/>, 
Intellectual Property Watch

The fight against counterfeiting and piracy is at the heart of the World 
Intellectual Property Organization committee on enforcement, a 
non-negotiating body. In a meeting of the committee this week, delegates 
heard expert presentations on ways to tackle infringement and measure 
its impact. However, the smooth discussions were disrupted by 
considerations of the future work of the committee.

The 8^th session of the WIPO Advisory Committee on Enforcement (ACE) 
took place from 19-20 December.

At the outset of the meeting, WIPO Director General Francis Gurry said 
he was delighted to see the number of delegations present in the 
committee, and took it as an indication of the high importance of the 
subject matter.

"It is very difficult to find what role an international organisation 
can play in this area, because it is a very delicate area and the 
international community has been very good in the last 50 years at 
developing rules," but a number of compliance mechanisms, in all fields, 
not just IP, are extremely limited," he said.

The future work of the committee, Gurry added, is an important 
opportunity to reflect and find creative solutions which will have a 
positive impact on the issue of enforcement.

Ambassador Thomas Fitschen of Germany was elected chair of the 
committee. He said that at the 7th session of the ACE (30 November -- 1 
December 2011), following a request from the Development Agenda Group 
(DAG), an agenda item on the contribution of the ACE to the 
implementation of the respective WIPO Development Agenda Recommendations 
was adopted.

Since the establishment in November of the draft agenda for this week's 
meeting, informal consultations on this point were held and regional 
groups decided to proceed as last year, he said. The additional agenda 
on the contribution of the ACE to the implementation of the WIPO 
Development Agenda was adopted and was inserted just before the last 
item of the draft agenda 
<http://www.wipo.int/edocs/mdocs/mdocs/en/wipo_ace_8/wipo_ace_8_1_prov.pdf>.

Belgium on behalf of the Group B developed countries said the group 
welcomed the proposal for the additional agenda item, as long as it did 
not become a standing item of the committee.

Future Work: Group B, DAG Proposals Stored Till Next Session

At the end of each session of the ACE, the work for the next session of 
the committee is discussed. Four proposals were on the table for the 
future work of the committee.

These included two submitted this month: a proposal from Group B 
<http://www.ip-watch.org/weblog/wp-content/uploads/2012/12/Group-B-proposal-ACE-Dec-2012.pdf> 
[pdf], calling for a study identifying the existence of initiatives 
targeted at school age students, to be presented at the 9th session of 
the committee; and**a proposal from Korea 
<http://www.ip-watch.org/weblog/wp-content/uploads/2012/12/Korea-proposal-ACE-Dec-2012.pdf> 
[pdf], proposing that the WIPO secretariat conduct a study on practices 
and operation of alternative dispute resolution systems in IP areas, and 
whose results be presented at the 9th session.

Also on the table were two earlier proposals. This included one from 
Peru 
<http://www.ip-watch.org/weblog/wp-content/uploads/2012/12/Peru-proposal-ACE-Dec-2012.pdf> 
[pdf], submitted in December 2011 and updated for this session, calling 
for a study on the economic impact of piracy and counterfeiting, 
identifying preventive actions, measures and successful experiences, 
taking into account the different level of development of member states.

And the fourth proposal for future work**was from the Development Agenda 
Group 
<http://www.ip-watch.org/weblog/wp-content/uploads/2012/12/DAG-proposal-ACE-Dec-2012.pdf> 
[pdf] dating from December 2010, requesting a discussion on how to 
intensify and improve WIPO's enforcement-related technical assistance, 
including legislative assistance with a view to preventing the abuse of 
enforcement procedures such as "sham litigation," and 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 difference in the legal tradition of each country.

Group B said they had concerns about duplication of work in the DAG 
proposal, in particular on the legislative assistance as described in 
the proposal, because earlier work had been carried out by the WIPO 
Committee on Development and Intellectual Property.

Despite informal consultations on the last afternoon, delegates found it 
difficult to agree on the four proposals. The chair proposed that the 
four proposals be incorporated into the future work of the committee, 
but some countries, in particular Group B, disagreed, and proposed to 
withdraw its proposal if the DAG would withdraw its proposal, in an 
effort to reach consensus on the future work of the committee.

However, the DAG said Group B's decision to withdraw its proposal was 
its sole responsibility and did not engage a decision by the DAG. 
Fitschen put a swift end to the polemics by declaring that the Korean 
and the Peruvian proposals, on which there was consensus, would be kept 
as the future work programme, and that further discussions would be 
undertaken at the next session on the Group B and the DAG proposals.

The Brazilian delegate told /Intellectual Property Watch/ that it would 
have been preferable to the DAG to have kept the four proposals in the 
work programme.

No Norm-Setting in ACE

A WIPO source noted that "the ACE, unlike other WIPO standing 
committees, does not have any norm-setting mandate, but a technical 
assistance and coordination mandate."

"In particular, the ACE coordinates with certain organisations and the 
private sector to combat counterfeiting and piracy," the source told 
/Intellectual Property Watch/. For example, WIPO works with the World 
Customs Organization, Interpol, and private sector organizations to 
organise the Global Congress on Combating Counterfeiting and Piracy.

The ACE <http://www.wipo.int/enforcement/en/ace/> was established by the 
WIPO General Assembly in 2002 and "emerged from various preceding WIPO 
Committees and Meetings dealing with IP enforcement issues," according 
to WIPO. The committee focusses on a number of objectives, such as 
"public education, assistance, coordination to undertake national and 
regional training programs for all relevant stakeholders and exchange of 
information on enforcement issues," said the WIPO source.

During the 8th session, several experts were asked to give presentations 
<http://www.wipo.int/meetings/en/details.jsp?meeting_id=25015> on a 
number of subjects, including: the quantification of economic effects of 
counterfeit and pirated goods; media piracy in emerging economies; 
consumer attitudes and perceptions on counterfeiting and piracy; methods 
of disposal and destruction of counterfeit and pirated goods within the 
Asia-Pacific region; and IPR infringements and enforcement accounting 
for socio-economic, technical and development variables.

The WIPO secretariat also presented a report on recent activities 
<http://www.wipo.int/edocs/mdocs/mdocs/en/wipo_ace_6/wipo_ace_6_2.pdf> 
[pdf]**of WIPO in the field of "building respect for intellectual property."

Brazil said that its comments from the last session of the ACE had been 
followed and the new version of the WIPO**document presented more 
information, and was easier to access. However, the delegation said, the 
secretariat should give more details on activities undertaken by WIPO, 
in particular in the area of technical assistance and on WIPO's 
participation in symposiums and seminars. Brazil said it would be 
interesting to member states to know who the speakers were at those 
events, the subjects discussed, and to be able to access the 
presentations made.

WIPO said it would look into the issue and try providing more 
information within the limits of what is possible. For example, it said 
that on the congress on combating counterfeiting and piracy, some 
meetings of the steering groups are not public and thus content of the 
meeting is not publicly available.

Meanwhile, Turkey said it will host the 7th Global Congress 
<http://www.ccapcongress.net/> on combating counterfeiting and piracy, 
taking place in Istanbul, from 24-26 April 2013. The WIPO secretariat 
said the UN agency is preparing three panels for the congress, on the 
subjects of building respect for IP, looking at the broader picture, and 
public-private partnerships, with inputs with other partners of the 
congress.

A representative of the World Customs Organization, which is 
co-organising the congress, said the programme is expected to be posted 
shortly on the congress website.

The committee's work this week mainly consisted of listening and 
commenting on the eight presentations provided by experts in the field.

Group B Favours Enforcement, DAG Wants Development Ties

In their opening statement, Group B emphasised the importance attached 
to the ACE and the effective enforcement of IP rights, which was of 
utmost importance for right holders, consumers, and the economy. The 
delegate said this is true irrespective of the stage of development of 
countries.

Brazil, on behalf of the DAG, said "the discussions on building respect 
for IP in this committee illustrates how complex is this issue and the 
need to further study and understand it in order to provide orientation 
to adequate and efficient public policies, taking into account the 
different socioeconomic conditions of each country."

The Brazilian delegate called for "combining strategies and regarding 
not only repression, but also educational and economic measures," 
recalling that Recommendation 45 of the WIPO Development Agenda is 
"essential."

Recommendation 45 
<http://www.wipo.int/ip-development/en/agenda/recommendations.html#f> 
requests "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 [World Trade Organization Agreement on 
Trade-Related Aspects of Intellectual Property Rights]"

The Brazilian delegate added that "only WIPO, a specialised UN agency, 
has the necessary credentials of expertise and legitimacy to lead the 
debate on how to better ensure IP protection. Our group is of the view 
that initiatives outside WIPO that reject this broader understanding of 
the problem have small chances to achieve sustainable results."

The European Union said there was need for developing further 
comprehensive and effective enforcement mechanisms, also emphasising the 
importance of compliance with existing enforcement, while recognising 
the different stages of development of member states and the need for 
technical assistance to achieve objectives. The EU suggested corporate 
social responsibility as part of an enforcement strategy, adding that 
strict social standards could play a key role in preventing piracy and 
counterfeiting.

The Third World Network , a non-governmental organisation working on 
development issues, said in its statement 
<http://www.ip-watch.org/weblog/wp-content/uploads/2012/12/TWN-Statement-ACE-Dec-2012.docx> 
[pdf] that the initiatives on IP enforcement "should not hamper the 
development policy space of WIPO member states, especially developing 
countries." The representative said "IP enforcement should respect other 
competing legal obligations of member states, especially human rights 
obligations such as [the] right to development, right to health, right 
to education and right to enjoy the benefits of scientific progress and 
its applications."

"We are concerned," he said, "with the over expansion of [the] legal 
concept of counterfeit to include all types of infringement of IP 
rights. This would lead to the criminalization of all forms of IP 
infringement and diversion of public money for the enforcement of 
private rights, which is currently limited to counterfeiting of 
trademarks and pirated copyrights**goods."

The ACE did not have time to discuss a summary by the chair, which is 
expected to be approved at the next session, after member states have 
the opportunity to provide comments.

The next meeting of the ACE has not yet been scheduled, but is likely to 
be at least a year from now.

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