Fordham International Intellectual Property Conference, Plenary Session: Multilateral and Bilateral Relations - Fordham Intellectual Property, Media & Entertainment Law Journal
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Fordham International Intellectual Property Conference, Plenary Session: Multilateral and Bilateral Relations

Fordham International Intellectual Property Conference, Plenary Session: Multilateral and Bilateral Relations

Fordham International Intellectual Property Conference
“Plenary Session: Multilateral and Bilateral Relations”

[Moderator: Prof. Hugh Hansen]
[Speakers: Hannu Wager, Michael Keplinger, Luc Devigne, Stanford McCoy]
[Panelists: Prof. Robert Burrell, James Love, Michael Shapiro]

[8:15AM] Hannu Wagner:
G20 summit led to a report, noting a danger of increasing regulations that would inhibit trade. The current economic crisis is only having a limited impact on the debate of Global IP. TRIPs provides a good platform still.

2 recent cases that demonstrate maintaining stability: 1) US complaint against China in the WTO; 2) EC complaint v. China concerning information services. China’s protection of trade secrets.
Regional trade agreements have become increasingly important. 425 have been documented under GATT. Sometimes described as a “spaghetti-bowl” of agreements.

[8:22] Luc Devigne: Talking about EU IP protection.
Why do we protect IP? (1) Important part of the EU trade policy. (2) Counterfeiting is growing and it is a major problem.
What do we do? Multilateral: TRIPs agreement. Its a difficult question of how to enforce. WIPO, WHO, WCO.
Bilateral: Corporation with like-minded countries (incl. US and Japan). Bilateral agreements with other countries. Main philosophy is to improve the legislative fraework as to IP in the EU, and also focusing on enforcement measures. 15 years after TRIPs can finally have some experience.
Some countries that have been problematic. Have a dialog with them. China, Ukraine, Brazil, Mexico, Chile, Turkey. Definitely results-oriented to improve IP enforcement. Therefore we need the cooperation of the private sector and the support of governments.
Plurilateral: One aspect is the activity of the G8. Statement of the leaders to fight counterfeits. Also the negotiations over ACTA. Hope to enlarge past the like-minded countries to others.

There are some progress seen in the cases and legislative developments. Need coopration between countries. The problem is a lack of concrete examples. IP has become a top priority of the trade policy of the EU.

[8:32] Michael Keplinger:
What does the future hold for WIPO? New leader, Francis Gurry. Complete overhaul of the organization. More goal directed and more accountable for actions. Long overdue for the organization.
What is going on in the copyright world?
Structurally, the organization’s work happens through committees. Right now the copyright emphasis is on limitations and exceptions. In enforcement area, the topics have to do with improving respect for intellectual property. this is a new direction the new director has implemented.

Limitations and exceptions to copyright: Studies carried out with outside consultants. Example: In the area of education / distance learning. Something that the developing countries have been pushing for — while most of these countries have exceptions for educational purposes copying, in developing countries this is mostly absent. An important one that will see development is exceptions for materials for the blind. (Talking books, braille).
Also calls for a work toward a treaty to deal with limitations and exceptions for the the blind and physically handicapped. But, it is really about creating trust arrangements with the groups that serve the blind, etc. to help create the materials to serve these groups. WIPO can play an important role by building on “stakeholder platforms” the technologists, the blind, and the rightsholders. To find a solution in a timely manner, rather than a treaty that will take years.

Enforcement: Francis has relaunched the work in this area to build respect for IP rights and the enforcement thereof. Need to convince developing countries that there is something in it for them.
Commissioning a series of economic studies focusing on the economic impact of copyright protection — hopefully the countries will see that there is an upside for them. Where implemented, seen a real turnaround in the policy of protecting copyright.
Working hard to put the organization back on track.

[8:43] Stanford McCoy:
Anticipating the question, “whether IP and trade policy will change under the Obama administration?”
The US is definitely shaped around what is important to us — the innovation and creation that is a pillar of US economic policy. Expect it to continue. Stressing the importance of innovation and creativity.
New US trade Rep, Kirk said he agrees that ensuring IP protection must be one of the top priorities. Noted that US has a comparative advantage in this field. We need these industries to improve lives of Americans through the fruits of IP innovation. Work with trading partners to ensure those commitments.

Meeting of WTO TRIPs council. No major changes in US positions.
Numerous opportunities for bilateral negotiation. Russia: restarted dialog. Nov, 2006 bilateral agreement reassured. China: strengthening relationship. Soon the US/EU working group for IP. Also, Canada, Mexico, Saudi Arabia, Nigeria, Thailand, Japan.
301 Report will come out in the end of April.
In the ACTA negotiations, Obama administration has said it wants to make sure it moves forward in a transparent way.

Sharing thoughts from Ambassador Kirk. Statistics — exports are 13% of the US GDP, and 97% of US exporters are small businesses. (Many of those small business rely on IP rights). President’s priority is turning around the economy, and trade policy is a cornerstone of that. Ability to trade on services, goods, and IP in a rules-based system is very important to economic growth.
American ideas can help move the economy forward.

[3:54] Question from Hansen: how do you determine for example what exceptions to include in the agreement?
[Michael] work with the partners to put it together.
[Luke] don’t start from scratch. There are existing rules. Work in cooperation with the domestic legislation. Also, get input from member states and businesses as well. Also, input from many departments of commission, not only IP-focused ones.
{hansen] What do you disagree about?
[Luke] geographical indications …

Hansen: What do you think about exceptions? Move from banning broadcasters, now exceptions. Is there a real issue in developing countries about this?
[Mike] developed countries tend to have provisions for this. In developing countries they just don’t have it. Their IP laws are basically the same rights, they just can’t effectively enforce those rights. We should try to provide education and training on how to improve protection. If we can show developing countries what’s in it for them (ie protection of their native cultural industries etc), they might become more supportive of enforcement.

[Hansen] How is the WTO doing?
[Hannu Wager] the economic crisis has thrown the WTO to the center stage for maintaining trade, helping to prevent further economic contraction.
About 6 or 7 people who are doing IP working at the WTO. When disputes, then involve other people who review.

[Hansen] (To James Love). Are things getting better or worse?
[James Love] Shocked at what was said on panel today. Shocked that people see it as no big deal to pass major treaties. The statement about ACTA being transparent is ludicrous! It doesn’t seem to connect with what is happening outside of the room. All the juicy details of the draft are left out of the public draft, but can be found on wikileaks.
Captured by economic issues of a few major corporations. What was said today is not accurate.

[Hansen] Happy or unhappy about what is happening in the WIPO?
[Michael Shapiro] Consistent with the Obama administration, setting meetings for committees. Notice of inquiry in the Federal Register for fact gathering so we know where US stakeholders stand.

[Hansen] Problem with bilateral policy?
[Robert Burrell] No, a problem with US policy. From Australian perspective, seems that we have achieved very little. Hoping for a less patronizing document. The previous adminstration seemed to “think they were Prometheus, bring the blessed light of IP to the benighted savages of the antipodes”.
Hoping that the new administration will be better.

Jason Lunardi