Fordham International Intellectual Property Conference, Trade Panel: Trade Policy & IP Rights - Fordham Intellectual Property, Media & Entertainment Law Journal
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Fordham International Intellectual Property Conference, Trade Panel: Trade Policy & IP Rights

Fordham International Intellectual Property Conference, Trade Panel: Trade Policy & IP Rights

Fordham International Intellectual Property Conference
“Trade Panel: Trade Policy & IP Rights”

[Moderator: Prof. Justin Hughes]
[Panelists: Jason Albert, Luc Devigne, Michael Keplinger, James Love, Stanford McCoy, Hon. Alice Pezard, Hannu Wagner]

– Not a verbatim transcription —

[10:45] Prof. Hughes: The issues that exist in IP will fade behind the other top stories of the day. But there are still interesting linkages between IP and trade policy. so, three broad topics: (1) Development Agenda in WIPO, (2) what is happening at WTO? What is happening at Doha Round and beyond? (3) Bilateral agreements, both in US and EU.

[Michael Keplinger] We have areed on certain projects going forward. There is money in the budget. Responding to “recommendation 19” of WIPO advisory committee. (calls on them to take into account the broader concept)

[James Love] As IP became more political, the leaders take note of ability to get access to medicines, copyrighted material.
Big change in agenda …
If people could feel like they understand the system, they would be more compfortable. Ex. some countries have same rights as developed countries, but not the same exceptions.

[Hughes] Jump over to the WTO … Tell us, what do you see as current linkages between trade and IP?

[Hannu Wagner] Recent G20 declaration, so the Doha Round is not completely dead. (it may be a zombie …)
Geographic Indication (GI) issues. Protection of wine and spirits. Relationship between TRIPs and CCD. What has happened is that in July there was a ministerial meeting to decide on modalities — prior to the meeting there was a proposal of these issues. Realize it is difficult to compromise on any of these issues, so it is tough to get anywhere.

What lies beyond? the focus of the WTO members is on Doha round, but there is a further discussion about whether further issues are to be added. Some topics: labor, environment.
One issue that always comes up is enforcement. Many countries have put this on the agenda a number of times. always there was objection that it was not the right time to discuss. Another issue raised was the boder enforcement in the Netherlands, pharmaceuticals. this was discussed instead…

[Jason Albert] Talking about development agenda. Many rightsholders see it as a threat, diminishing value of IP.
Instead see it as an opportunity rather than a threat. Have developing countries engage with IP.

One of the interesting things is that it overemphasizes IP in the role of development. Maybe over-sold in one way. Need to take a more sophisticated view: There is much that IP can do for development. Tie between IP protection and getting technology, tech-transfer.

[Hughes] Do you think rights holder have wised up? Now they seem amenable to the development agenda?

[Jason Albert] The implicit point is that, if we look at the dev. agenda as an opportunity it is just marketing “spin” — But, there is an issue as to how IP is perceived; Also rights-holders engage in more sophisticated thinking. Looking at new business models, trading IP, take a more sophisticated view.
Not just a marketing slogan.

[Hughes] How do you think dev. agenda is playing out?

[Alice Pezard] Two key points: (1) how to adapt patent copyright to a new form of exploitation. Justice must take precedence over patents. (2) conflict between corporate rights and human rights. See the prison case in India.

[Hughes] Address the issue: what is the appropriate role of bilaterals and their impact as opposed to the multilaterals?

[Luc Devigne] True that multilateral negotaitions were slower than expected, so bilateral agreements were negotiated. EC remains attched to multilateral deals.

[Stanford McCoy] the idea of “competitive liberalization”. Bilateral and regional agreements as the tool to get countries to oen up new horizons for international trade. We look forward to political leaders to express their policy.

[James Love] One of the strategies of the governments is to have as little transparency as possible. they wont release the actual text, or the list of names. Because in US they have a system of advisors — those people are cleared. Only one consumer group among all of them! Big corporate guys have lobbyists in the advisory boards. This is a democracy deficit. They use the bilateral agreements to create norms that affect us!

In the developing country, it is a form of imperialism. Many countries don’t even negotiate. the lack of capacity to get their own terms — so it is very one-sided deals — things they would never agree to in multi-lateral deals. US just ramming these deals down the throad of developing nations. It is a disgrace that we’ve moved into these bilateral agreements.

[Hughes] Isn’t it fine for a sovereign state to agree to trade agricultural resources for IP?

[Love] It is a disgrace …

[Hughes] How does WTO react?

[Wager] Parties have the right to agree to additional norms & standards if they so wish. Some see as a positive stepping stone, but there is an issue of ill will. We need to have transparency and a way to discuss if people feel there is a problem. More info available to the public.

[Keplinger] Memer states can always negotiate. WIPO is a member-driven organization. In a situation where impossible to make progress in certain areas: ex. broadcasting treaty …
Not afraid of bilateral areements, they can be a way to advance the state of the art.

[Hughes] Are bilaterals too complicated? Making bad standards?

[McCoy] Jamie (Love) made contradictory points. In actuality they are hard-fought agreements.
On the transparency front Jamie makes a good point. There is room to consider transparency improvements. But also important to be able to continue to do the mission. But can’t take process over substance, need to get the results.
There should be more research done with the benefits of IP of developing countries. One anecdotal example: in India, suggested policy of licensing and more control of optical disc manufacturing, to get a hold of piracy. The piracy disproportionately affects the Indian artists, rather than the US ones.

[Devigne] There are some issues like access to medicine, but by now we have a good balance in the TRIPs agreement.
If you improve copyright protection for example in Brazil, you would be helping the local artists, because the majority of the music purchased is local.

Myth that the organization is open to the big corporations. It needs to be secretive. It is not simple.

[Hughes] Do you find Brussels adequately transparent?

[Pezard] There have been many improvements …
There is a balance between transparency and confidentiality. In Europe there is a good balance. Not as good of a success with the press, and the information there.

[Love] Once distributed the negotiation position to the parties negotiation, in ACTA, why shouldn’t the public have it? No justification for pretending it can’t be shared with public.

[Devigne] It is on the website…

[Audience Question] What is the motivation for other countries to join ACTA after it is started?

[McCoy] When talking about comprehensive free trade agreement, IP is a trading chip. When it is an IP focused agreement, can go to government and ask them if they will be strong on it because it is the right thing to do, and to create investment climate. ACTA would sell itself if we have a package of appropriate measures.

[Devigne] The value of ACTA is to bring the problem countries around to our side. We haven’t reached this step yet, because it is not final, but there are ideas on how to do it.
ACTA is not new substantial law, only enforcement. Who can be against enforcement?

[Jason Albert] Need to show it is in their economic interest. Ex. Juan Valdez …
If you find example of industries in countries, the countries will be just as agressive.

[Hughes] Once ACTA completed, does that become part of FTA?

[McCoy] That is already the case. It wouldn’t be a change. But ACTA also adds enforcement provisions, to give more tools.

[Audience Question] Criticism: The panel does not have a representative of a developing country!
Also, the dev. agenda stopped in the 60s then IP became political. In 70s the battle over revision of Paris Convention. Later in negotiation of GATT and TRIPs, dev. nations were totally against it — only signed it after Europe would reduce the subsidies in agriculture, but they never did.
With the multilateral agreements, NAFTA, only later on the issue came up to create free trade of americas (south america too).
Because of deadlock, the US moved to bilateral agreement.

[Devigne] Correct, there should be a representative of developing nation on the panel.
The main hang up of these negotiation is agriculture, not IP.
The dev. agenda in the WIPO — get away from idea that we impose this on dev. nations.

[Audience Question] Excessive concern with downstream output we lose sight of the development. Good thing about the WIPO agenda is that we can rethink.
Many dev. countries have rights but no limitations & excpetions. Why complain about it? Why not go back and just pass some national laws. Advocate from Geneva.

[Love] It is instructive to read US 301 list of countries basically slapped around for doing just this! They get singled out for exercising their rights.
If WIPO had encouraged it, maybe it would have happened. WIPO was hostile to that activit.

[Keplinger] It is not like Jamie has said in the WIPO. This has been going on for years. Studies done with the developing countries. They will continue to do it.

[Audience Question] In’l Publishers association:
Simply not true that the interests of the developing world is simply to have more exceptions & limitations.
Ex. Reason why publishing industry is so weak in sub-saharan Africa is because of the lack of IP protection. It is almost “colonial”.

[Love] With pressure on enforcement, countries who used to jsut ignore copyright must go on to a more legal regime — do so with pricing and limitations.

Jason Lunardi