[A2k] IP-Watch: Industry Losing Faith In WIPO; Debates US WTO Cases Against China

[Thiru Balasubramaniam]

http://www.ip-watch.org/weblog/index.php?p=3D979

----------------



<SNIP>

Many want to see WIPO=92s culture change. It is vital the technical body
become efficient in approving necessary norm-setting directives to
prevent other organisations or governments from enacting various
treaties or initiatives on their own to combat IP-related blights such
as piracy and counterfeiting, speakers said. The US government, for
example, joined by several other governments, last fall announced a
negotiation for an Anti-Counterfeiting Trade Agreement (ACTA), as a
way to combat piracy.

=93I think we do need to accept that we=92re at a stage where norm setting
is at somewhat of a fallow period at WIPO=94 and that is not necessarily
a bad thing, said Shira Perlmutter, executive vice president of global
legal policy at IFPI (International Federation of the Phonographic
Industry) in London. But =93people are looking elsewhere=94 to get things
done.

Jamie Love, director of Knowledge Ecology International in Washington,
predicted WIPO will improve in the next few years, and will eventually
=93think about IP and try to solve problems.=94 It will, he added, become
=93less a propaganda place =85 the demand will be to become smarter.=94

<SNIP>

On other topics, Tilman Lueder, head of the Copyright Unit,
Directorate General for Internal Market and Services at the European
Commission, came under fire by activists and others, who accused the
commission and its commissioner, Charles McCreevy, of being dishonest
in explaining who a proposal extending copyright protection for sound
recording performers would benefit, and how.

The commission wants to extend protections for some performers from 50
to 95 years. Other proposals include a fund for session musicians
consisting of 20 percent of revenue derived from the extended term,
and allowing features artists to retain all royalties accruing during
the period. McCreevy also supports a =93use it or lose it=94 concept, in
which performers can move to new labels if theirs refuse to release
tracks during the extended term.

=93I still have a feeling we=92re not hearing the whole story,=94 said Bern=
t
Hugenholtz, director of the Institute for Information Law at the
University of Amsterdam who has served as an adviser to WIPO and the
commission, and recently authored a paper on the subject. He added:
=93There=92s something fishy here.=94

Silke von Lewinski of the Max Planck Institute for Intellectual
Property in Munich accused the commission of blindly following the
United States - Europe=92s proposed change would bring its rules in line
with those in the US - going so far to say: =93Does the commission want
to be a satellite of the US,=94 like Eastern European countries were
satellite countries of the Soviet Union.


----------



28 March 2008
Industry Losing Faith In WIPO; Debates US WTO Cases Against China

By Liza Porteus Viana for Intellectual Property Watch

NEW YORK=96The World Intellectual Property Organization is seen as in a
state of tumult these days, as the global body searches for a new
director general and tries to grapple with issues such as implementing
a Development Agenda and further harmonising global patent regimes.
And some industry observers think it is causing some to lose trust in
the organisation.

WIPO will try to pass its 2008-2009 budget Monday, six months late. It
also has a list of 15 candidates from a wide range of countries such
as Pakistan, Brazil, Italy, Australia and Honduras, to choose from in
selecting its next director general. The WIPO Coordination Committee
will meet on 13-14 May to nominate one candidate to be appointed by
the annual WIPO General Assembly, scheduled for 22-30 September. The
new DG is expected to take the helm on 1 October.

Richard Wilder, associate general counsel for intellectual property
policy at Microsoft, said Thursday at an intellectual property law
conference at Fordham University in New York City, that the next WIPO
leader must be a person of integrity who will run a transparent
operation, has experience running a large and complex technical
organisation, can work effectively with member states and understands
the role intellectual property plays in a broader sense than just
technical aspects. There are some candidates on the list that have
those qualities, Wilder added.

But beyond choosing a new director general, more work needs to be done
on the WIPO organisation as a whole, relationships with member states
and constituencies and staff relations, along with issues such as work-
sharing.

=93I think right now there continues to be a reservoir of good will=94
WIPO can draw from to improve itself, Wilder said. =93The next DG will
have some healing to do in terms of the staff.=94

Many want to see WIPO=92s culture change. It is vital the technical body
become efficient in approving necessary norm-setting directives to
prevent other organisations or governments from enacting various
treaties or initiatives on their own to combat IP-related blights such
as piracy and counterfeiting, speakers said. The US government, for
example, joined by several other governments, last fall announced a
negotiation for an Anti-Counterfeiting Trade Agreement (ACTA), as a
way to combat piracy.

=93I think we do need to accept that we=92re at a stage where norm setting
is at somewhat of a fallow period at WIPO=94 and that is not necessarily
a bad thing, said Shira Perlmutter, executive vice president of global
legal policy at IFPI (International Federation of the Phonographic
Industry) in London. But =93people are looking elsewhere=94 to get things
done.

Jamie Love, director of Knowledge Ecology International in Washington,
predicted WIPO will improve in the next few years, and will eventually
=93think about IP and try to solve problems.=94 It will, he added, become
=93less a propaganda place =85 the demand will be to become smarter.=94

Debate on Addressing China IP Violations

Conference speakers also debated whether the piracy complaints lodged
against China at the World Trade Organization are going to be
effective in compelling Beijing to enforce anti-counterfeiting and
anti-piracy measures. WTO panels have been formed to deal with two IP
rights-related complaints. Twelve members have signed on to the United
States=92 arguments, including Brazil, Argentina, Thailand, Turkey and
the European Union.

The United States filed a case against China, WT/DS362/7, for which a
panel was formed on 25 September. In it, the United States alleges
China has failed to provide =93criminal procedures and penalties to be
applied in cases of wilful trademark counterfeiting or copyright
piracy on a commercial scale that fail to meet certain
thresholds=94 (IPW, WTO/TRIPS, 27 September 2007).

In a second case brought by the United States, WT/DS363/5, the WTO in
November launched an investigation into allegations that China is
unfairly limiting the flow of copyrighted material from the United
States into the country (IPW, WTO/TRIPS, 28 November 2007).

Victoria Espinel, who served as the first assistant US Trade
Representative for intellectual property and innovation, said
litigation in the China matter was not preferable but =93it was deemed
necessary by the US government.=94 The alleged violations of
intellectual property rights enforcement and market access provisions
of the WTO Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS) have a =93tremendous impact=94 on the industry, she added.

There has been much discussion surrounding whether the United States
should have lodged a complaint in the first place. Espinel outlined
some of the criticisms, which include: the US could lose (which could
be interpreted to mean the TRIPS agreement does not include effective
enforcement); the case is not big enough; China could retaliate
against US companies and stop cooperating with the US on intellectual
property matters; and that it is unfair to China since it has made
some progress in this area.

=93None of them, to me, are compelling reasons for the US to not
exercise its right before the WTO,=94 Espinel continued. Doing nothing,
she said, will =93leave the US hostage to China=92s desires.=94

China has repeatedly urged the US to withdraw its complaint, arguing
that it has made progress. But experts on Thursday said that is not
enough and there could be broad implications in a US win in the
matter. Even if it does not significantly effect how the Chinese do
things, =93the political impact of the US will be very significant=94 in
terms of what else could be done, said Daniel Gervais, an intellectual
property and law expert at the University of Ottawa who was actively
involved in the TRIPS agreement negotiations.

=93I think this is a small-arms fire case =85 the heavy artillery is still
in the hangar somewhere,=94 Gervais added.

Criticism of European Commission=92s Proposed Copyright Extension

On other topics, Tilman Lueder, head of the Copyright Unit,
Directorate General for Internal Market and Services at the European
Commission, came under fire by activists and others, who accused the
commission and its commissioner, Charles McCreevy, of being dishonest
in explaining who a proposal extending copyright protection for sound
recording performers would benefit, and how.

The commission wants to extend protections for some performers from 50
to 95 years. Other proposals include a fund for session musicians
consisting of 20 percent of revenue derived from the extended term,
and allowing features artists to retain all royalties accruing during
the period. McCreevy also supports a =93use it or lose it=94 concept, in
which performers can move to new labels if theirs refuse to release
tracks during the extended term.

=93I still have a feeling we=92re not hearing the whole story,=94 said Bern=
t
Hugenholtz, director of the Institute for Information Law at the
University of Amsterdam who has served as an adviser to WIPO and the
commission, and recently authored a paper on the subject. He added:
=93There=92s something fishy here.=94

Silke von Lewinski of the Max Planck Institute for Intellectual
Property in Munich accused the commission of blindly following the
United States - Europe=92s proposed change would bring its rules in line
with those in the US - going so far to say: =93Does the commission want
to be a satellite of the US,=94 like Eastern European countries were
satellite countries of the Soviet Union.

Lueder countered by saying the EU should not be viewed as the body
that cares the least about the sound recording industry. An IFPI
official said any extension should also apply to record producers.

Meanwhile, the US Copyright Office is expected to soon release a
notice of proposed rulemaking regarding digital recordings delivered
via streaming.

------------------------------------------------------------


Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997