[A2k] Gurry at ASIL Meeting (Notes from C. Gellis)

[Manon Ress]

ASIL Meeting =96 Washington DC, 4/1/05

Globalization, Development, and Intellectual Property: New Challenges
and New Opportunities

Jonathan Band, moderator
Francis Gurry, WIPO
Deborah Halbert, Otterbein College

Band: tension between developed countries saying that with IP rights it
will be good for country, stimulating innovation.  But developing
countries say, don't tell us what we need.  We need to feed people, etc.
  And if we have to Xerox some books, so be it.  Then we can develop a
culture of innovation.  Comparison to US in 19th century when it used to
copy things.  But once US caught up to Europe, then it took protections
more seriously.

[Missed: Gurry bio, Halbert =96 she writes books about merge between poli
sci and IP]

Gurry:

1990s was tumultuous decade for IP.  We had TRIPS, first comprehensive
IP agreement.  Intense wave of globalization.  IP intimately connected
with it.  It impacts on the principle vectors of globalization.  Eg,
patents, trademarks (ensuring a uniform identity in distributed
markets), industrial designs, copyright (cultural expressions).  In this
world where we are increasingly consuming the same culture.

Also 1990s had deployment of two radical technologies: internet and
biotech.  They are enabling technologies, not industrial ends unto
themselves.  They both affect vital interests: freedom of speech and
sanctity of life.  Rights of property in respect to things
controversial.  See EFF "patent busting" program on patents deemed to be
harmful.

Transformed landscape of IP.  Economically, legally, socially.

Economically, we see a demand explosion for IP.  With respect to
existing rights, increase worldwide for patents and copyrights.  In
1990s # of new inventions per year rose [missed stats, but 60%
increase].  Nothing compared though to patent apps worldwide.  Desire to
obtain protection across borders.  1.5 mill patent apps in early 90s ->
14 mill by 2002.

Also demand for new rights.  See area in IT, new right in layout of
integrated circuits.  Database protection (in EU).  Rental rights,
communication rights.

Demand for new rights doesn't just affect developed countries.  Also sui
generis rights sought to protect traditional knowledge.  Genetic
resources and [].

Demand for geographical identification [rights].  See Dohan round of
negotiations.  To deal with the inevitability of market liberalization.

"The great body of citizens are refusing to wait until negotiations are
over=85 [rest missed]."  Quote from 1920s [source missed]

Rise of network society affecting this.  WIPO general got a letter
signed by 800 people that demands transparency within WIPO and rejects
disproportionate representation.  Also wants WIPO to be concerned with
access to IP.  [source of letter not mentioned]

See Paris and Berne conventions for old international legal framework.
It answered only to itself.  The underlying [policy] of IP rights, but
didn't deal with other public policies.  TRIPS changed that, by
considering impact of these agreements on other policies.  See subject
matter flexibilities.

Around 1997, new era.  (again).  relation between IP and other policy
areas much more interactive and complex.  It used to be that only WIPO
cared=85 now WTO[?], UNESCO, etc.

Developed[?] countries want disclosure of genetic origin.  Why?  Not IP
related, but because of other policy goal.  USING the patent system to
affect this other policy goal.

Heightened concern and sensitivity to what constitutes public demand.
Also [] of spurious patents, like business method.  The patent system
and property rights are allegedly encroaching on public domain.
Biopiracy another allegation.  [He used word "allegation" where mentioned.]

[mention of Open Source movement.]

[public domain is a slogan.] [?]

Issue of prior art.  Used to be based on previous patent
applications.[?]  But now too many patent applications to be researched.
  Also 1.2 mill peer reviewed technology articles that need to be
reviewed.  So, eg, EU patent organization, .37 references made to
nonpatent material.  Now .47.  [seems to be complaining of volume
necessary to search.]  Good news, sources are online.  Bad news, there's
a lot more languages.

4 [] that warrant our attention:
Demand.  Coping with demand.  Present way in patent system is an
unsustainable model.  USPTO employee 3800 people to analyze.  Plans to
[double?].  Europe has 4000.  Rate of addition is extraordinary.  But
how can 4000 people effectively decide what shouldn=92t be patented. [not
sure of basis of complaint.]

Public domain.  Get past the slogan.

Problem of development.  84% of patents belong to US, Japan, or Europe.
Political impasse internationally.  3 reasons:

exogenous, having nothing to do with IP, but as a result of IP in TRIPS.
IP itself.  Inogenous.  Perceptions of the role of IP.  Developed and
developing countries don't agree.
Social dimension.  Convenient battleground for other interests.  See
patenting other organisms.  But some of you will go eat a higher
organism, and that seems like a bigger deal than patents, which is only
to prevent someone else from manufacturing it.

Moving forward=85 suggestions:

re: demand =96 debate is out of hand, internationally.  Best to have a
work-sharing between patent offices worldwide.  850,000 applications
each year.  Should be researched once.  But then patent offices need
same understanding of what constitutes prior art.  WIPO has project for
patent law harmonization.

[something missed]

Feb 05, Casablanca.  Agreement that 4 issues of underlying
functionality, with no disadvantage for developing countries, should go
forward on fasttrack.  Question of development should be actively
pursued and discussed.  Breakthrough on functional agenda.  Consensus
that bad patents not be patented.

"We need to get away from distorting lens of rights."  Look at what
[they mean.]

Legislative aspect and [?]  [you get more time][?]

Patent documentation includes a wealth of technology.  [what is he
talking about]  [written about before commercialized?]  [want to
redeploy patent examiner labor.]

Re: developing agenda [what?]

Consistencies in public domain.  Patent system contributes to it.  eg,
Trinidad and Tobago say the steel pan should have moral rights to keep
people from improving it.  But compare with Saxophone, which was
patented in 1846, fell in public domain, and has been improved.  And
compare with violins, which we can't recreate the best of because they
never disclosed their methods.

Need to create space at international level for dialog without risk.
Right now no delegation can forsake its position.  Need to change that,
can't come back to haunt you as a new right.  "Dialog is fraught with risk.=
"

[end]

Halbert:

Got Ph.D. from U of Hawaii.  First thing I encountered was 100 year
anniversary of Hawaiian overthrow.  Inspired sovereignty movement.
Woman gave talk about traditional knowledge and its piracy.  She doesn't
try to address that relating to Hawaii with American governmental
bodies, but talks on international stage.

Huge role therefore for WIPO to play.

[she's a poli scientist]

Agreements:
Controversy surrounding IP linked to globalization.  We can't put this
back in the box of the nation state (but we probably never could)
[second thing missed =96 reconceptualize IP for people as global citizens.]
WIPO has an enormous role to play.

What's exciting is that we on the panel we can come from different
standpoints.  Gurry comes from system =96 here are it's values, and they
need to be expanded.  "I" have different questions [].  There's not
consensus of only way to protect these rights.

Traditional knowledge issue appropriates typical IP dialog.  Way of
resisting a further colonization.

Think TRIPS has made this a controversial issue.  And some disputes are
really subject matter specific (eg, textiles)

We need to think how the whole balance of trade, with everyone's rights
worldwide, getting protection.

I'm very interested in the resistance.  What motivates them?  What's
their future?

Jurgen Habermast.   Communication dialog.  He talks about social
movements emerging in resistance of colonization of the life-world.
Everyday lives, not thinking of the world as a commodity.

Why are Indian farmers protesting seed patents but US ones not?  US
farmers see it as a natural thing.  They're used to it working this way
(the laws have been around longer).

I think it's too late to go back to a model where the nation-state can
take care of these things.

Access to medicine issue in South Africa.

We can revisit what civil society means=85  Things have moved globally, so
we'll have to think globally how to change them.

So IP is this massive global dialectic. [more]  It will move beyond the
nation-state boxes.

IP is a really important part of our everyday lives.  See RIAA.
Unintended consequence is motivating a group of people into having to
take a stand.

As long as we discuss the issue of development we'll be able to get a
better solution.

Questions:

Gurry: TRIPS is the only WIPO agreement that deals with rights.  It sort
of hijacked the debate.

Taiwanese professor had a WIPO-related question, but couldn't contact
WIPO because not part of it.  noted Article 10.

Gurry: TRIPS wasn't meant to address Internet, but by choice of words it
did.

Gurry: conversation at WIPO to update broadcasters' rights from Rome
convention for digital environment.  It's an open question as to whether
webcasting is considered as broadcasting.  US is for it, EU moving
slowly towards it.  [Rest of world doesn't like.]

Band: re: making available to the public.  US law doesn't really have
analog.  There's a distribution and display right, but none of those
really fit the definition of uploading onto the internet.  What are they
really doing?  They are clearly making it available, but they aren't
distributing it in a classical sense.  They aren't making a public
performance or display either.  Courts have said this is a
distribution/display, but in many senses it really isn't.  US copyright
law might get amended to fit better to define what it means to upload.

Gurry: definition of prior art throughout the world =3D [], except US.
Harmonization treaty.  Nothing disadvantageous in it, there is some
advantageous language.

Question: what role will WIPO have with regard to entertainment industry?

Halbert: I like bubbling up of resistances.  College students have
learned about copyright and aren't sure they like it.

Gurry: IP works on the tradeoff of shortterm disadvantages v. longterm
advantages.

[more missed]  Political management of IP right, not just legislative.
Compare entertainment and pharmaceutical industry.

Band: what amazes me is how few people can really influence global
policy.  [Raises issue of regulatory capture at PTO and Copyright office
by entertainment people].  [Then copyright and patent people go to
international negotiations with the policy values that have been given
to them.  To the extent that US gets what it wants, it gets that.]

On the other hand, relatively few people can have a blocking effect.

Question from UC Davis law prof re: genetic material: would the
developing world want to see internationally equip the responsibility
imposed on corporations by local laws.  They don't have the means to
enforce their laws for foreign corporations when they've failed to live
up to their obligations.

Gurry: raises relationship between public international law and private.

Is what we're talking about better regulated by patent or contract?

Question of civil society in IP lawmaking.  Evolution in WIPO from
member-state driven to a more "porous" situation with NGOs becoming
active.  Civil society is now coming up with its own treaties, like
"Access to Knowledge."  Hoping that one day WIPO will bring it into its
purview.

Halbert: TRIPS made WIPO rethink its own identity.  WTO is not the most
democratic of organizations.  Access to knowledge is a subversive way to
talk about copyright=85

Gurry: This is a development to be welcomed.  Broader participation.
But then go back to Root[sp?] quote, there are obligations on both
sides.  On the public side, understand where the civil society is coming
from, but civil society side needs to understand [what's going on].
[raised issue of letter and point of private consultations.  Defends
them.  Says they are necessary, "without being reported in the newspaper."

OH THIS IS WHAT HE MEANS BY RISK.

On access to knowledge, we need to contextualize [missed].
--
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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