[A2k] GRULAC's proposal for Enforcement Committee calls for balance

[Sangeeta]

WIPO: GRULAC's proposal for Enforcement Committee calls for balance
Published in SUNS #6550 dated 18 September 2008

Geneva, 17 Sep (Sangeeta Shashikant) -- The Latin American and Caribbean
countries in the World Intellectual Property Organisation (WIPO) have
proposed that adopted Recommendation No. 45 of the WIPO Development Agenda
be the basis for discussion at the next session of WIPO's Advisory Committee
on Enforcement (ACE), planned for the first half of 2009.

Recommendation No. 45 states: "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."

This is timely, given the current trend of "IP maximalists" working in
various fora towards higher standards of IP protection and enforcement.

The Group of Latin America and the Caribbean (GRULAC)'s proposal is one of
three proposals received by the WIPO Secretariat on topics to be discussed
at the next ACE session, which is planned for the first half of 2009. The
other proposals are from Group B (composed of industrialized countries) and
the Regional Group of Central European and Baltic States.

The ACE, established in September 2002, has a mandate which excludes norm
setting and is limited to technical assistance and coordination, in
particular, coordinating with certain organizations and the private sector
to combat counterfeiting and piracy activities; public education;
assistance; coordination to undertake national and regional training
programs for all relevant stakeholders; and exchange of information on
enforcement issues through the establishment of an electronic forum. Thus
far, the ACE has met four times.

The Fourth Session of the ACE, which took place from 1-2 November 2007,
could not agree on the topic to be considered by the 5th ACE session
although it heard a number of proposals, including a proposal on bio-piracy.

In the absence of an agreed topic to be considered at the 5th session, the
Chair, Dr. Hassan El-Bradawy, Assistant Minister of Justice for
Parliamentary Affairs, Egypt, invited regional groups to consult and provide
the Secretariat with their proposals on topics as well as on the procedure
to be applied for selecting future topics, by the end of February 2008.

The Chair's Conclusions (WIPO/ACE/4/10), which was adopted by the 4th ACE
session, also noted the recommendation that "the Secretariat take into
consideration suggestions made by Member states on the list of speakers."

The WIPO General Assembly begins next Monday, but the discussion topics for
the 5th ACE session remains undecided.

According to sources, a regional coordinators' meeting was held in WIPO last
Friday, and regional groups have been asked to consult and to show
preference for one of the topics by 19th September.

Group B, in its proposal for a topic, states that it "continues to welcome
the topic suggested by WIPO Secretariat as a most appropriate one, i. e.
"Coordination and cooperation related to IP crimes via the internet" --
(WIPO/ACE/4/2 par. 21).

The proposal suggests other topics to be considered:

-- administrative cooperation and information exchange at national, regional
and international levels, among public authorities;

-- online trading of counterfeit and pirated goods;

-- education and awareness on the importance of legitimate use of IP;

-- involvement of the private sector in capacity building work;

-- contribution of rightholders in enforcement;

-- effectiveness of the judiciary in criminal and civil proceedings;

-- health and safety concerns related to counterfeiting in the area of
medical products.

On the procedure for selecting future topics, Group B proposes that, "after
the submission of proposals in advance of the Committee, Members aim at
reaching consensus, failing which the Chair engages in consultations with
regional coordinators about these proposals, out of which the Chair selects
the final topics for the agenda of the next meeting - presupposing that
these topics are of relevance to enforcement issues."

It adds that "the agenda for each meeting should be determined specifically
for that particular meeting."

Except for topics on education and awareness as well as effectiveness of the
judiciary in criminal and civil proceedings, the Regional Group of Central
European and Baltic States has also proposed the same topics in a letter
dated March 3, 2008.

GRULAC proposed recommendation No. 45 of the adopted Development Agenda
which refers to Article 7 (pertaining to "Objectives") of the TRIPS
Agreement as the basis for discussion for the 5th ACE session.

According to sources, the WIPO Secretariat has mentioned that the GRULAC
proposal is difficult to implement.

However, the GRULAC proposal appears most relevant and timely. This is
because of the increase in regional trade agreements containing provisions
on enforcement that go beyond the TRIPS Agreement, and because several
international agencies and fora -- for example, the World Customs
Organisation (WCO), World Health Organisation (WHO), and Anti-Counterfeiting
Trade Agreement (ACTA) -- are attempting to set standards on enforcement.
There is a major campaign by developed countries to push for adoption of
standards on counterfeiting and piracy, supported by institutions such as
WIPO, WCO and WHO.

Thus far, the ACE sessions and presenters invited during the sessions have
been focused on issues relevant to the rights holders. For example, the 2nd
ACE Session focused on the role of the judiciary, quasi-judicial authorities
and prosecution in enforcement activities, including problems related
thereto such as litigation cost; the 3rd Session on the issue of education
and awareness building, including training, in all areas of intellectual
property enforcement; and the 4th session on cooperation and coordination at
the international, regional and national levels in the field of the
enforcement of IP rights with a particular focus on effective criminal
remedies.

The proposal by GRULAC will enable stocktaking of the current situation on
IP enforcement, and discussions on whether the current trend of IP
enforcement works for broader societal interests, addresses
development-oriented concerns, promotes technology innovation, transfer and
dissemination of technology.

The topic also allows discussions on whether the current IP trend is "to the
mutual advantage of producers and users of technological knowledge", and is
"conducive to social and economic welfare, and to a balance of rights and
obligations".

Issues relevant to Group B and the Central European and Baltic States may
also be addressed under GRULAC's proposal.

Following selection of the topic, regional groups should also pay attention
to the crafting of the draft programme for the next ACE, as well as the
speakers that will be invited to trigger discussion. Procedure for selecting
future topics should be "inclusive".

Sources also say that informal discussions on the topic are likely to
continue after the WIPO General Assembly (GA).

Before the WIPO GA is a "Report on the Work of the Advisory Committee on
Enforcement (ACE) and the Enforcement of Intellectual Property Rights"
prepared by the Secretariat, which the GA is asked to take note of.

The report particularly refers to the joint initiative of "Global Congress
on Combating Counterfeiting and Piracy" by WIPO, the International Criminal
Police Organisation (Interpol) and the World Customs Organisation (WCO),
with the support and cooperation of the International Chamber of Commerce
(ICC), the International Trademark Association (INTA) and the International
Security Management Association (ISMA).

The Report states that under the banner of Rising to the Challenges,
"discussions focused on selected topics including free trade zones and
transshipment; health and safety risks; building anti-counterfeiting
capacity; raising awareness; and sale of counterfeit and pirated products
via the internet".

It adds that "The crucial role of WIPO in the protection and enforcement of
IP rights, its commitment to foster the strategic partnership with the
private sector, its support of the international efforts to propose and
elaborate on solutions to the problems of counterfeiting and piracy were
underlined and appreciated in the presentations and debates".

For developing countries, the agenda item on enforcement in the General
Assembly is an opportune time to raise concerns with regard to the current
"IP maximalist" trend on enforcement adopted by developed countries. +