Copyright War Summit Report: ACTA, WIPO and in Canada

Howard Knopf, of Excess Copyright, did a presentation for the BrightTalk Copyright War Summit that summed up three important copyright topics: the ever-top-secret Anti-Counterfeiting Trade Agreement (ACTA), the World Intellectual Property Organization (WIPO), and that horrible den of copyright infringement – according to the USTR Special 301 Report – Canada.  (Readers, please be sure tongue is properly inserted in cheek when reading that last part.)

ACTA

Much talk and speculation have surrounded ACTA since leaks of its existence first began to surface.  Knopf does not get into any of the meat of ACTA (meat can be found here).  Instead, he focuses on the very important issues surrounding the agreement.

One of the biggest concerns is the plurilateral nature of the agreement, the absence of major international organizations like WIPO and the World Trade Organization.  These two organizations traditionally handle international intellectual property treaties, yet they are completely uninvolved with ACTA.  Also missing from the negotiations: developing countries.  There are more developing than developed countries in the world; they are important.

ACTA’s secretiveness comes down to one thing.  It is a lobby-driven effort being propelled forward by music, film and software industries.  These industries don’t want to protect against fake drugs or other ‘counterfeits’; they want ex officio border control measures, customs officials who check iPods for illegally obtained music, and 3 strike ISP rules.

[For more information on the ACTA part of Knopf’s presentation and ACTA in general, see IP JUR.]

WIPO

WIPO has had its fair share of trials and tribulations during the past decade.  The Treaty for the Protection of the Rights of Broadcasting, Cablecasting and Webcasting Organizations is still just ‘proposed.’  The Audiovisual Performances Treaty is dead in the water.  And the Treaty for Improved Access for Blind, Visually Impaired and other Reading Disabled Persons has met with some unexpected opposition.

Yet, Knopf appears hopeful that WIPO is on the mend.  The new Director General, Francis Gurry brings a lot of energy and integrity back to the organization.  Committees continue to meet and move forward on their individual projects and the Treaty for the Blind is still on the table.

Canada

Knopf believes (and this Ipper thinks there’s a lot of sense in his argument) that Canada has one of the best IP regimes.  Like Baby Bear’s bed, Canada’s IP laws are not too hard and not too soft.  Canada has a tax on blank media, which compensates rightsowners for media sharing.  There is also wide Fair Dealing (similar to US concept of Fair Use) for educators and librarians, outlined in Canada Supreme Court case CCH 2004.

Knopf also gave a short summary of important marks in copyright’s history: the Statute of Anne, Apollo v. White Smith, introduction of the first portable computers, Sony, Napster, Grokster.

If you’re interested in more about the superiority of Canadian IP law, WIPO’s strength going forward or the controversy surrounding ACTA, you can check out Howard Knopf’s excellent and informative presentation in full at BrightTalk.

April Celebrations

April is a very busy and exhausting month for intellectual property lovers.  What with all these celebrations we are apt to gorge ourselves on cake and expend all our air blowing up balloons.

Happy Birthday TRIPs

Celebrations started last week with the 15th birthday of TRIPs, the Agreement on Trade Related Aspects of Intellectual Property.  The agreement was signed  as part of the Marrakesh Agreement establishing the World Trade Organization on April 15, 1994.  (The agreement did not enter into force until January of 1995.)  Since then, there have been over 100 disputes concerning TRIPs before the WTO (per WTO website).  One interesting note for the 15th anniversary is Article 64, which was intended to last for 5 years and then be reviewed.  It was extended once for 5 more years.  The provision is still active.  Will it ever be removed?

Earth Day

Today is Earth Day.  Although Earth Day did not begin with a focus on intellectual property, it is hard to escape the association now.  A large part of environmental awareness and improvement involves new forms of energy and environmentally friendly inventions.

World Book and Copyright Day

Tomorrow, April 23rd, is World Book and Copyright Day.  UNESCO, the United Nations Educational, Scientific and Cultural Organization, began World Book and Copyright Day as a special occasion for promoting "reading, publishing and the protection of intellectual property through copyright."  Take some time to celebrate your favorite authors and books with the rest of the world!  (This particular Ipper will most likely be curled up in a corner with Jane Austen, if she can find her book.)

World Intellectual Property Day

Sunday is the crowning glory of the month's festivities: World Intellectual Property Day.  This year, WIPO's theme for the April 26th celebration is right in line with Earth Day: promoting green innovation.  A list of suggested celebratory IP activities can be found here.

April 26th also marks the 39th anniversary of the establishment of WIPO.

Developing Decent Digital Distribution Solutions

A couple of press releases recently caught the Ippers' attention.  Two groups are each working to ensure that fans get their digital music and artists get their money, but they're working from different angles.

Getting the Infringers to Fight Infringement

Freshman at Vanderbilt University in Nashville, TN, politely called "first-year students," are developing a new distribution system for the music industry.  The project is part of a seminar called "Stealing in Music City."  In addition to their own perspective as the ones trying to get the music, the students will have the input of various industry stakeholders and experts, including Alice Randall and this Ipper's own copyright professor, Steven Hetcher.  Hopefully the students have some very interesting and viable ideas.  The class will present its three solutions in class next week Tuesday.  Ip's What's Up will let you know when we hear about any of them.  (Full press release.)

Europe Re-Evaluates Collective Management

This week, WIPO is also looking at the affect of the digital age on music distribution.  The Conference to Examine Future Development of Collective Management of Copyright and Related Rights in Europe meets this week Monday and Tuesday in Brussels.  The 400+ participants are listed to include: "collective management organizations, lawyers, academia, intergovernmental and non-governmental organizations, developers of digital technology and services and creative industries."  Where are the users?  Looks like the student group at Vanderbilt might be smaller but more comprehensive in its stakeholder input. (Full press release.  Conference Info.)

It's great that collecting rights organizations in Europe are engaging in discourse about the changes in the industry and the role they can play in facilitating positive developments.  Some other countries could use a few good collecting organization conferences, especially in the developing world.  (Africa, the Middle East, India.)

Treaty Updates

With the close of the WIPO Assemblies this week, there is a lot of news regarding treaties coming out of Geneva.  In addition to our regular post, Ip's What's Up presents this brief recap of recent developments.

General News

• Mr. Francis Gurry was appointed the new Director General.  (Read Ip's What's Up's review of his acceptance speech here.)

 

Treaties

• The United States ratified the Singapore Treaty.  This brings the total number of contracting parties to eight, just two shy of the ten needed for the treaty to enter into force.

 

• China extended two treaties, the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT), to Hong Kong, effective today (October 1, 2008).

 

• The African Intellectual Property Organization (OAPI) accession to the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs became effective on September 16, 2008.  Beginning on January 1, 2009, the treaty's provision for 90% fee reduction for LDCs will be extended to intergovernmental organizations with a majority of LDC members.

 

• Several amendments were made to the Patent Cooperation Treaty (PCT).  One set of amendments changes procedures in the international search system.  The other amendments relate to international application processing.

 

For a full report of these events and updates on the various committees, check the WIPO press release.

WIPO's New Direction with WIPO's New DG

The WIPO General Assembly began its thirty-fourth session this week.  One of the first orders of business on its agenda: electing a new Director General.  On Monday, Francis Gurry of Australia gave his acceptance speech.  (You can read his full speech here.)

Gurry's Goals
Mr. Gurry's acceptance speech contained all the expected rhetoric of unity and working together to improve the global state of IP.  It also contained thoughts on some specific areas needing attention.  Primarily, and encompassing all others, is the explosive growth of technology.  A backlog of patent applications in Patent Offices around the world is one direct effect of this growth.  Another is the increase of copyright infringement, made easier by developments in digital technology.  Mr. Gurry encourages building upon the existing Patent Cooperation Treaty (PCT) to address the first. The second issue, he says, requires a reexamination of WIPO's role as "the international organization responsible for intellectual property."

Beyond these classic IP issues of patent procedure and copyright infringement, the new Director General discussed issues of global concern where IP might be of assistance.  Mr. Gurry seems enthusiastic that IP holds possibilities for LDCs (Least Developed Countries) in terms of closing the knowledge gap and improving economies.  IP protection of traditional knowledge and "a global knowledge infrastructure" are two steps towards these goals.

Indeed, both of these are projects in process.  The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has been discussing international IP protection of these areas for eight years, and the newly established Committee on Development and Intellectual Property (CDIP) is working to implement a list of recommendations that includes expanding its PATENTSCOPE® database, creating agreements for access to other existing databases, and establishing "inter-regional IP Search Databases."

Mr. Gurry highlighted the relationship between advancements in technology and the fight against climate change, disease, and other such global concerns.  He urged WIPO to add its IP contribution to these challenges and proposed that a new Division in the Secretariat would focus on these concerns.

Where's WIPO
When BIRPI, the predecessor to WIPO, was originally formed, its purpose was to help facilitate international protection of patents, trademarks and industrial designs (under the Paris Convention), and literary and artistic works (under the Berne Convention).  The current focus appears to be a bit blurry.  As seen from the Director General's speech, WIPO's concerns now include:

• "the stimulation and diffusion of innovation and creativity"
• "the establishment of order in the market"
• "dealing with the growth of demand and internationalization of the patent system"
• "returning value to creators, performers and their business associates"
• dealing with "the scourge" of "risks to health and safety and consumer protection" arising from counterfeit goods
• "contribut(ing) to the reduction of the knowledge gap"
• contributing to "greater participation on the part of developing and least developing countries in the benefits of innovation and the knowledge economy"
• capacity building of LDCs
• "making intellectual property work to the advantage of all countries"
• "broadening intellectual property to make it more responsive to the needs of the developing world"
• "address(ing) global challenges" such as "climate change, desertification, epidemics, access to health care, food security and the preservation of biodiversity"

Intellectual property encompasses so much and touches on so many areas of life.  In its attempt to handle issues in several areas, WIPO seems to be pulling itself in different directions.  Is it a development org? An environmental agency?  An enforcement body? An administrative support system?  Mr. Gurry did recognize this confusion to some extent in his acceptance speech.  Commenting on WIPO's role in copyright, he pondered two alternatives:

Should that role be confined to awareness-raising and the training of customs officials, the police and the judiciary?  Or should it encompass a more robust engagement and, if so, alone or in cooperation with other concerned international agencies?

In some ways, it is good that one organization is trying to address all these issues.  It means that each representative is (or should be) aware of what's going on and how these issues coincide.  This could lead to more well-rounded and effective agreements, if agreements are ever reached.  Some committees, like the IGC, appear stalled with sharp divisions between developed and developing countries.  However, the CDIP actually seems to be getting somewhere.  At its first meeting, the committee began sorting through the list of recommendations it is to implement and took action on six of the forty-five items.

In Sum
Mr. Gurry has a lot of ideas for guiding WIPO.  The organization has been under scrutiny lately, and the world is very interested to see in what kind of direction this new Director General will take "the international organization responsible for intellectual property."