[Ip-health] KEI general statement to 2009 WIPO General Assembly

[Thiru Balasubramaniam]

http://keionline.org/node/620


The following is the general statement that KEI delivered to the WIPO
General Assembly on September 29, 2009.

General Statement of KEI
WIPO 2009 General Assembly
September 29, 2009

ACTA

Outside of WIPO, some countries are involved in secretive negotiations
on a new Anti-Counterfeiting Trade Agreement (ACTA). KEI asks WIPO to
adopt a resolution calling for an end to the secrecy of this
negotiation. Global norms for the enforcement of IP should be
transparent and benefit from comments from the public before decisions
are made on substantive provisions.

Patents

In the areas of patents, KEI is encouraged by the current SCP work
program, including in particular the proposed work on access to
medicine, the research exception and issues relating to patents and
standards.

KEI suggests WIPO undertake a study of the issue of state practice
concerning requirements for the disclosure of patent claims when
standards are proposed, and to consider a possible WIPO instrument
that would create a global system of required disclosures for some
important knowledge interfaces.

WIPO should also examine the flexibility in the TRIPS to allow non-
voluntary uses of patents under Article 44.1 and 44.2 of the TRIPS,
and determine if this flexibility is at risk from standards that have
been advanced in the ACTA negotiations that would change global norms
for issuing injunctions and which would increase the damages from
infringement.

KEI believes Article 44 of the TRIPS provides considerable flexibility
for the implementation of liability rules that may be appropriate for
implementing patents in the areas of innovation inducement prizes for
medical innovation, climate change, and standards on essential
technologies. This flexibility is at risk in the secretive ACTA
negotiations.

Copyrights

With regard to the SCCR, KEI opposes work on a new treaty for
broadcasting organizations. There is no evidence such a treaty is
needed, and if implemented as a new intellectual property right for
entities that merely assemble content for distribution, it presents
risks to both consumers and creative communities, and will greatly
concentrate intellectual property rights and transfer wealth to giant
foreign firms that control the global distribution of copyrighted works.

KEI encourages the SCCR to focus on a robust work program on copyright
limitations and exceptions that addresses a broad set of exceptions,
including those dealing with people with disabilities, libraries,
education, distance education, archives, orphaned works, innovative
services, translations, excessive pricing and the control of other
anti-competitive practices.

KEI does not believe that deep harmonization of all copyright
limitations and exceptions is needed or appropriate in most cases. In
general, it will be best if the global rules provide for the
appropriate level of freedom to operate, so that national laws can
experiment to find ways to balance and protect both consumers and
creative communities, while using a diversity of approaches that are
consistent with domestic legal traditions and values.

However, in some special cases, global norms will be useful, including
(in some cases) minimum limitations and exceptions for copyright. In
particular, where cross-border uses of works or technologies are
necessary, some global norms will be needed to stimulate public and
private investments in such services. For example, cross-border uses
that will or may benefit from global norms include:

    1. the sharing of accessible works for persons who are blind or
have other disabilities;
    2. distance education, delivered across borders;
    3. the cross border sharing of works by libraries;
    4. the regulation of Digital Rights Management (DRM) and Technical
Protection Measures (TPMs), as they relate to the exercise of
legitimate uses of works, or the control of anti-competitive
practices; and
    5. the development of some innovative services,

Global norms are durable, and should be done correctly. While some of
these projects are ready now, others may take many years before
sufficient analysis, consultation and consensus emerges and there is a
strong basis for global norm setting.

A treaty for sharing works in accessible formats for persons who have
reading disabilities can be done now, and is long overdue.

Work on reading disabilities should not be delayed until a broader
work program on copyright limitations and exceptions is completed, and
indeed, neither should work on distance education, libraries or other
topics be limited by requirements that the entire work program be
finished. For norm setting, the SCCR should move each project forward
when it is ready =96 not before, and not much after.

In the case of reading disabilities, the SCCR should aim to authorize
a diplomatic conference at the 2010 General Assembly meeting. That
diplomatic conference should be held as early as Spring 2011. Work on
other norm setting activities involving limitations and exceptions
should go forward in parallel, including but not limited to proposals
that may be offered in the areas of distance education and libraries.


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


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