Against this background, this lunchtime dialogue will reflect on the range of measures and options discussed in the IGC  on the basis of a new ICTSD study entitled “Bridging the Gap on IP and Genetic Resources in WIPO’s IGC” by David Vivas-Eugui, from Anamika Innovation Policy Advisors.

The study considers the binding or non-binding nature of the instrument(s) that might emerge from the IGC and their different implications and makes recommendations regarding processes, substance and existing research gaps that could contribute towards advancing the IGC deliberations. After a presentation by the author, a number of commentators will share their views followed by a general discussion with the audience.

Download the issue paper here.

To register please email Ms. Daniella Allam dallam@ictsd.ch

In the past two years, WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has witnessed an acceleration of its work in particular on traditional knowledge and traditional cultural expressions.  However, the gap in positions on genetic resources remains significant.

Against this background, this issue paper examines at length the range of measures and options discussed in the IGC especially biodiversity disclosure requirements and databases. It also considers the binding or non-binding nature of the instrument(s) that might emerge from the IGC and their different implications. In connection to all these aspects, the paper makes recommendations regarding processes, substance and existing research gaps that could contribute towards advancing the IGC’s deliberations.

The agreement aims to strengthen the enforcement of intellectual property rights (IPRs) against rights infringement; some of these new standards go beyond the minimum requirements in the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).

The EU follows Australia, Canada, Japan, South Korea, Morocco, New Zealand, Singapore, and the United States in signing onto the pact (see Bridges Weekly, 5 October 2011).

Of the negotiating parties, Switzerland and Mexico have yet to sign the agreement. In the case of the latter, it is still unclear whether Mexico City will do so, given that the Mexican Congress approved a resolution last year asking President Felipe Calderón not to sign the pact (see Bridges Weekly, 29 June 2011).

Countries have until 1 May 2013 to sign the pact. ACTA will become legally binding only after Japan - the depositary of the agreement - receives six ratification instruments from the negotiating parties.

Since the start of formal negotiations in 2008, several civil society groups have raised concerns about the lack of transparency in the ACTA negotiation process and regarding the possible effects of the pact’s “TRIPS-plus” provisions on access to medicines and on the exercise of fundamental freedoms in the digital environment.

At an October 2011 meeting of the WTO’s TRIPS Council, some developing countries also raised concerns about the impact that ACTA may have on their public policy goals and the international intellectual property regime as a whole (see Bridges Weekly, 2 November 2011). Specifically, they feared that ACTA’s “TRIPS-plus” measures could undermine access to essential medicines and affect non-signatory countries.

‘ACTA is not SOPA,’ says Commission

The timing of the EU signature comes at a moment of growing opposition by Internet users and major online platforms against potentially restrictive national legislations that may narrow digital freedoms.

The online piracy debate came to a head in recent weeks, after two controversial bills in the US Congress - the Stop Online Piracy Act (SOPA) in the US House of Representatives, and its Senate counterpart, the Protect IP Act (PIPA)- prompted high-profile protests from Wikipedia and other major sites, along with drawing White House reservations (see Bridges Weekly, 18 January 2012). The US legislation has since been shelved, for the time being.

In light of this, the European Directorate-General for Trade last week published a document aimed at dispelling “myths” about ACTA, emphasising that it “will not limit people’s rights on the internet nor will it shut down websites, unlike the proposals discussed in the US.”

The European Commission has particularly stressed that ACTA is not SOPA: while SOPA would change US legislation, ACTA does not require any modifications to EU law. However, last January a group of European academics drafted a legal opinion pointing to a number of ACTA provisions that were not, in their view, entirely compatible with EU law and would directly or indirectly require additional action on the EU level - an opinion that was later rebuffed in a European Commission Services working paper.

EU signature sparks protests

In response to the EU’s signature, Kader Arif - a French Member of the European Parliament - resigned last Thursday from his function as ACTA rapporteur to the European Parliament Committee on International Trade, citing serious concerns over the process that led to the pact’s signing.

In his statement, Arif also underscored that ACTA raises concerns in terms of “its impact on civil liberties, the way it makes Internet access providers liable, its consequences on generic drugs manufacturing, and how little protection it gives to our geographical indications.”

Following Arif’s resignation, a spokesman for the European Commission told the BBC that ACTA “simply levels the playing field so that other countries match our standards. There is no threat to internet freedom or privacy.”

“Everything you can do legally today in the EU, you would be legally able to do if ACTA is ratified,” the spokesman added.

Meanwhile, the pact’s possible effects on Internet freedoms stirred controversy in Poland, where public demonstrations led Polish Foreign Minister Radek Sikorski to defend his government’s position in a TV interview on 25 January. Following Poland’s signature the next day, more protesters rallied to express their opposition to the agreement.

Next steps

The European Parliament has to give its ‘consent’ to ACTA, and the national ratification processes in EU member states must be completed, before the European Council can adopt a final decision to conclude the agreement. Once this decision is notified to other ACTA signatories, the agreement will enter into force in the EU. However, past votes show that ACTA supporters only have a narrow majority in the European Parliament.

The Parliament’s International Trade Committee is scheduled to vote on ACTA in either April or May; following the committee vote, the European Parliament is expected to vote on the agreement in June.

ICTSD reporting; “Poland signs copyright treaty that drew protests,” ASSOCIATED PRESS, 26 January 2012; “European Parliament rapporteur quits in Acta protest,” BBC NEWS, 27 January 2012.

IP discussions

In her opening address at the 16-23 January meeting, WHO Director-General Margaret Chan highlighted the organisation’s ability to “reach agreement on global governance instruments that provide collective protection against shared threats…Like the need to manage intellectual property rights in fair ways, for industry, but most especially for public health.”

In this regard, the EB adopted a resolution establishing a “new Member State mechanism for international collaboration among Member States, from a public health perspective, excluding trade and intellectual property considerations” regarding ‘substandard/spurious/falsely-labelled/falsified/ counterfeit medical products’. The mechanism is to be reviewed after three years of operation and its modalities will be decided on at the next Assembly in May.

Sources note that trade and intellectual property had been explicitly left out of the resolution, due to developing country fears that efforts to combat “counterfeit” medicines could affect trade in genuine and effective generic medicines.

Other concerns raised during discussions on this issue were about definitions - ‘substandard/spurious/falsely-labelled/falsified/ counterfeit (SSFFC) medical products’ is the terminology used in the resolution to assuage tensions over how best to refer to these products - and about the WHO’s connection to the International Medical Products Anti-Counterfeiting Taskforce (IMPACT), a controversial partnership supported by the pharmaceutical industry that has created unease among civil society groups in terms of its involvement with what they consider IP enforcement-related matters.

The Executive Board meeting also examined other issues related to intellectual property, such as R&D financing and preparedness for pandemic influenza, among others. The Board considered a report from the advisory group tasked with monitoring and evaluating the implementation of the “Pandemic Influenza Preparedness Framework” adopted at the previous World Health Assembly (see Bridges Weekly 4 May 2011).

Chan nominated for second term as WHO chief

At the meeting, the Executive Board also nominated Chan for a second term as Director-General of the organisation. Chan was the only candidate proposed for the position.

This nomination is likely to be approved at the Sixty-fifth World Health Assembly, scheduled to meet in Geneva in May. If confirmed, Chan’s new term will begin on 1 July 2012 and continue until 30 June 2017.

Institutional reform discussions make progress

Earlier in the year, Chan had opened talks on WHO reform - the “largest in [the WHO's] 63 year history” - to make the organisation more effective, transparent, and accountable in its activities. Discussions on the subject had originally been launched in May 2011 (see Bridges Weekly 25 May 2011).

Last week, the Executive Board approved a Chair’s Summary that outlines the timeline and necessary preparations for reform-related discussions during the next World Health Assembly.

The Board’s talks on reform were structured around three broad themes: managerial reforms - including the issue of financing - programmes and priority setting, and governance.

The topic of engagement with other stakeholders - such as public interest NGOs and business groups - was one of the most controversial, as some countries worried that these groups’ own agendas would unduly influence the WHO’s decision-making.

Another hotly debated issue was that of voluntary versus assessed contributions in terms of organisational financing. Chan expressed hope that a “predictable financing mechanism” would ensure transparency in the organisation’s programme and activities.

The reform debate is set to continue during the World Health Assembly and the subsequent Executive Board meeting in May 2012; the provisional agenda for the 65th World Health Assembly can be found here.

ICTSD reporting; “WHO Board Plan For Fake Medicines Mechanism Excludes Trade and IP,” IP WATCH 28 January 2012; “WHO Reform debate to continue, February fixed for member-driven priority setting,” TWN INFO, 27 January 2012.

The Stop Online Piracy Act (SOPA) - also known as the E-PARASITE Act (Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation Act) - targets “rogue” websites that are “dedicated to infringing activities.”

Its counterpart, the Protect IP Act, or PIPA, is currently making its way through the Senate. (See Bridges Weekly 9 November 2011)

SOPA and PIPA would allow copyright owners to obtain court orders to shut down sites accused of hosting pirated content, with a special emphasis on websites registered outside the US.

The bills could also force US-based search engines, advertising networks and payment services - such as Google AdSense and PayPal - not to do business with sites accused of illegal activity.

Obama administration questions central elements of anti-piracy bills

The anti-piracy bills have also elicited a strong response from the White House, which cited serious qualms with central elements of the legislation.

In a statement posted on Saturday 14 January on We The People - a US government platform that addresses public petitions with over 25,000 signatures - the Obama administration announced that “we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.”

The authors of the statement - a group of White House advisers on intellectual property, technology and cybersecurity - also warned that “we must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet.”

However, the statement also made clear that - despite opposing SOPA and the Protect IP Act in their current forms - the Obama administration would indeed be pushing for some sort of anti-piracy legislation this year, as “existing tools are not strong enough to root out the worst online pirates beyond our borders.”

“Moving forward, we will continue to work with Congress on a bipartisan basis on legislation that provides new tools needed in the global fight against piracy and counterfeiting, while vigorously defending an open Internet based on the values of free expression, privacy, security and innovation,” the advisers added.

The White House statement was written by Victoria Espinel, Intellectual Property Enforcement Coordinator at the Office of Management and Budget; Aneesh Chopra, US Chief Technology Officer and Assistant to the President, and Associate Director for Technology at the Office of Science and Technology Policy; and Howard Schmidt, Special Assistant to the President and Cybersecurity Coordinator for National Security Staff.

Wikipedia, other sides go dark in protest

The big win for SOPA and PIPA detractors - with some even speculating that the statement could imply a potential presidential veto on the bill in its current form - has not stopped the tech industry from taking matters into their own hands.

On Monday, user-based information giant Wikipedia announced its decision to black out its English services for 24 hours in protest against the bills. The decision was made by a group of 1800 Wikipedia community members - known as Wikipedians - who called it the “largest level of participation in a community discussion ever seen on Wikipedia” and marked the first time that the site had ever staged a public protest.

Several other major sites, such as Reddit and Boing Boing, were also set to go dark at 0500 GMT on Wednesday 18 January.

In a statement, Wikipedia Executive Director Sue Gardner called SOPA and PIPA “indicators of a much broader problem.”

“All around the world, we’re seeing the development of legislation intended to fight online piracy, and regulate the Internet in other ways, that hurt online freedoms… We want the Internet to remain free and open, everywhere, for everyone,” she added.

Supporters push back

However, the bills still have many strong supporters in the content industry, including the Motion Picture Association of America (MPAA) and the Screen Actors Guild, which argue that online piracy costs them billions of dollars in yearly revenue.

“While we agree with the White House that protection against online piracy is vital, that protection must be meaningful to protect the people who have been and will continue to be victimised if legislation is not enacted,” the MPAA said.

Another supporter of the bill is News Corporation Chief Executive Rupert Murdoch, who tweeted “So Obama has thrown in his lot with Silicon Valley paymasters who threaten all software creators with piracy, plain thievery,” in response to the White House statement.

SOPA sponsor and House Representative Lamar Smith, a Republican from the US state of Texas, has responded to the criticism by promising to cut certain provisions that would force service providers to block access to foreign websites with infringing content.

In the meantime, the White House said it will host a conference call and online event with signers of the petition opposing the bill to get more input as SOPA moves to the House floor. A vote on PIPA is scheduled in the Senate on 24 January; discussions on SOPA are expected to continue in February.

ICTSD reporting. “U.S. online piracy bill headed for major makeover,” REUTERS, 16 January 2012; “Wikipedia joins web blackout in Sopa Act protest,” BBC NEWS, 17 January 2012.

The WIPO Standing Committee on the Law of Patents (SCP) met from 5-9 December in Geneva, Switzerland and was chaired by Albert Tramposch of the United States Patent and Trademark Office.

The issue of a work programme on patents and public health quickly became the most controversial of the week, in light of a proposal presented at the previous SCP by the Development Agenda Group and the African Group.

The proposal is based on the view that “the patent system should be consistent with fundamental public policy priorities, and in particular the promotion and protection of public health.”

It also affirms that trade agreements should not restrict the use of the flexibilities inherent in the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to protect public health (see Bridges Weekly 30 May 2011).

While developing countries welcomed the proposal, some developed countries warned of duplicating work and did not support its adoption.

The United States noted that “it is clear that other factors external to patent protection are at play in limiting availability of … medicines… [Instead] of continuing to place blame on the patent system for contributing to the lack of access to medicines the focus should shift to studying the more relevant factors hindering access in the appropriate fora.”

The US followed by presenting a proposal of its own on patents and health for studies on “the positive impact of patent systems in providing lifesaving medicines to developing countries,” along with factors unrelated to the patent system that have an impact on medicine availability.

Many developing countries expressed their disagreement, with Zimbabwe in particular noting that this proposal “deviates attention” and “in no way complements the proposal currently on the table.”

In a statement to the SCP, NGO Médecins sans Frontières added that “the role of WIPO is extremely crucial to introduce and maintain a balanced patent system which essentially takes into account the developmental and humanitarian consequences of a patent regime. In its advice and technical assistance to member states, WIPO should proactively refer to exceptions and flexibilities allowed under different international treaties.”

“Intellectual property, and specifically patents, affect prices and availability of desperately needed medicines,” the MSF representative urged.

Member states agreed to continue discussions on both proposals during the next session of the SCP.

Technology transfer, E&Ls draw further discussion

As a response to the heated debate during the previous SCP over the technology transfer issue (see Bridges Weekly 30 May 2011), the morning session of the first day featured a special seminar on “The Economics of Intellectual Property.”

Technology transfer issues addressed at the seminar included the incentives and obstacles to technology transfer; practical experiences regarding the role of patents; and the need for data to evaluate the performance of the patent system in this area.

During the May session of the SCP, developing countries had argued that a WIPO study on technology transfer had not addressed the possibility of patents being a barrier to technology transfer to developing countries and was therefore “not neutral.”

In last week’s session, the Committee agreed to have the WIPO Secretariat prepare a document listing WIPO’s activities in the area of technology transfer.

Exceptions and limitations to patent rights also received attention during the week-long meet, particularly with regards to a questionnaire member states were asked to complete on their national and regional practices. The chair’s summary noted that the answers received will be posted on the SCP electronic forum; discussions are set to continue at the next session of the SCP.

The committee also discussed three proposals on patent quality - one from the UK and Canada, a second from Denmark and another from the United States. The various proposals attempted to address long-standing questions on how best to achieve high-quality patents.

The ongoing patent quality debate has largely centred on the tension between speeding up the granting of patents and ensuring that the inventions protected advance the state of the art and do not stifle innovation. The proposals brought up at the SCP meeting did not lead to any decisions, however.

The 18th session of the SCP is expected to take place in May or June 2012.

ICTSD reporting.

This framework is the output of work commissioned and undertaken by the World Health Organization (WHO), the United Nations Conference on Trade and Development (UNCTAD), the International Centre for Trade and Sustainable Development (ICTSD) and a range of stakeholders working in the fields of public health, industrial policy and development. It is supported by funding from the European Union.

By the WHO

Original Link

This framework is the output of work commissioned and undertaken by the World Health Organization (WHO), the United Nations Conference on Trade and Development (UNCTAD), the International Centre for Trade and Sustainable Development (ICTSD) and a range of stakeholders working in the fields of public health, industrial policy and development. It is supported by funding from the European Union.

By the WHO

Original Link

The Standing Committee on Copyright and Related Rights (SCCR) met from 21 November to 2 December in Geneva, Switzerland. The draft conclusions of the SCCR - adopted late on Friday night - are available here.

Treaties for audiovisual performances and broadcasting organisations progress

A preparatory committee for a treaty on the protection of audiovisual performances, meeting in parallel to the SCCR, agreed that it would hold a diplomatic conference - the highest level of negotiations at WIPO - on the subject after 20 June 2012. A diplomatic conference for the same treaty had been suspended in 2000 over disagreements on the issue of transfer of rights from performer to producer.

The committee agreed that the diplomatic conference - set to take place in Beijing - would not reopen any previously agreed upon provisions from the previous conference, but could add more explanatory language to certain articles.

In a similar vein, discussions on a treaty for the protection of broadcasting organisations advanced, with the committee agreeing to continue its “signal-based approach.”

The rights of broadcasters are currently addressed by the 1961 Rome Convention, yet some countries and media broadcasters felt it necessary to update them in face of rampant piracy and technological changes. Several countries and NGOs are concerned that such additional protection would undermine copyright holders in the creative industries and create a hierarchy between small webcasters and large “traditional” broadcasters.

Knowledge Ecology International - a Washington-based NGO - noted that this proposed treaty would extend “beyond the beneficiaries of the 1961 Rome Convention” and would give broadcasters rights to content that they did not create or own the copyright to.

In this session of the SCCR, South Africa and Mexico submitted a proposal intended to bridge the gap between  differing views, in particular on whether the treaty should cover webcasting in addition to traditional broadcasting. The proposal posits that the treaty should only cover traditional broadcasts in a technologically neutral way.

The committee agreed to discuss this and other proposals for the protection of broadcasting organisations further at the next session of the SCCR.

L&Es for libraries and archives move forward, leaving print disabilities behind

This session of the SCCR saw libraries and archives at the centre of attention, with countries agreeing to discuss the issue under 11 thematic clusters, namely: preservation; right of reproduction and safeguarding copies; legal deposit; library lending; parallel importations; cross-border uses; orphan works, retracted and withdrawn works, and works out of commerce; limitations on liability of libraries and archives; technological measures of protection; contracts; and right to translate works (see Bridges Weekly 23 November 2011).

However, controversy drew out the discussions late into the night as countries disagreed over the nature of the instrument and whether the SCCR should consider a treaty or simply a non-binding instrument.

As a compromise, the WIPO Secretariat proposed that an exhaustive document including all opinions and proposals be compiled, entitled  “Provisional working document containing comments on, and textual suggestions towards, an appropriate International legal instrument (in whatever form) on exceptions and limitations on libraries and archives.” The document would be presented to the next session of the SCCR.

Some countries expressed discomfort in having spent valuable negotiation time discussing the wording of the title of the document, but libraries and archives lauded the progress made, calling the process “very encouraging indeed.”

“SCCR’s consideration of prospective provisions for library and archives exemptions augurs well for researchers, students, and the public worldwide,” said former Society of American Archivists President William Maher.

Despite progress in other areas, the issue of limitations and exceptions for persons with print disabilities did not advance much, though the last session of the SCCR had left many hopeful (See Bridges Weekly 29 June 2011).

Brazil expressed its discomfort with the fact that the current text on the table “has much more open issues than the joint proposal that was co-sponsored by a very large representative number of delegations in the last session of the SCCR.”

Meanwhile, the EU proposed substantial revisions to the text, disappointing a number of countries and other members of civil society.

An earlier “consensus document” had been proposed by a wide cross-regional group that included various South American countries, the EU, and the US.

“We are now, perhaps, more distant from the objective than ever before,” the Brazilian delegate said.

“We made relatively little progress, and in some ways went backward,” added Dan Pescod of the World Blind Union.

The next meeting of the SCCR is tentatively scheduled for July 2012, after the diplomatic conference for the audiovisual treaty.

ICTSD reporting; “WIPO Sees Progress on Broadcasters Rights, Library Exceptions; Treaty For Blind Readers Slips,” IP WATCH, 5 December 2011.

El documento examina el alcance de las principales disposiciones del texto legislativo, con especial atención a aquellas que tuvieron por objeto implementar la dimensión de equilibrio de intereses en la regulación nacional de derecho de autor. Entre los temas discutidos, el documento considera la propuesta fallida de incorporación de una norma estilo “fair use” explicando las razones por las cuales, en el contexto doméstico, ella no prosperó. Finalmente, el autor expone las principales variables políticas que incidieron en la discusión legislativa y las dificultades que debieron superarse para concluir con éxito la reforma.

El autor además de ser abogado, académico y fundador de la ONG Derechos Digitales en Chile,  se desempeñó como Asesor Legislativo de la Ministra Presidenta del Consejo Nacional de la Cultura y las Artes de Chile (2005-2010) y en esa función tuvo un papel importante en los trabajos preparatorios y en la discusión en el Congreso Nacional del proceso de reforma.

English Version