Intellectual Property Owners Association (IPO) calls WIPO treaty for blind "dangerous precedent for other areas of IP Law"

On April 15, 2013, the Intellectual Property Owners Association (IPO) sent a letter to Teresa Stanek Rea, the Acting Under Secretary of Commerce for Intellectual Property and the Director of the U.S. Patent and Trademark Office, setting out the IPO "concerns" about the proposed WIPO treaty for persons who are blind or visually impaired. (Copy here).

As an organization, the IPO is primarily focused on patent and trademark rights. The board of directors of the IPO is a who's who of large multinational corporations from the technology, pharmaceutical, energy and consumer goods fields. The Current President of IPO is Richard F. Phillips of Exxon Mobil, the Vice President is Philip S. Johnson from Johnson & Johnson, and the Treasurer is Carl B. Horton from General Electric Co. IPO's letter is aggressive in tone and calls for a narrowing of exceptions for the blind. The IPO says it is largely concerned about the precedent for patent law, and the letter sets a new standard for the alarmist "slippery slope" arguments in opposition to robust exceptions for the blind.

Some excerpts from the IP letter follow:

Our main concern about the VIP treaty, as currently drafted, is that it addresses L/Es to copyrights in isolation, without parallel provisions addressing IP holders’ rights. The proposed VIP treaty would create specific L/Es to copyright protection, with the aim of broadening access to print works for the visually impaired. However, it would not reflect the importance of protecting the copyright of those who created the work.
. . .

A balanced approach to copyright protection cannot exist when rights and exceptions are treated separately.

To achieve this objective, we have three recommendations:

(1) Incorporate the Berne Convention’s “three step test” into the VIP treaty. This can be done directly or explicitly “by reference.” If the three step test is not incorporated, however, limitations and exceptions may apply, while basic copyright protections do not.

(2) Delete the VIP treaty’s expansion of fair use. As you know, many WIPO member countries do not have proper legal and institutional mechanisms in place that would allow them to implement fair use effectively and fairly.

(3) Ensure that there is an exception to L/Es for situations where a copyrighted work is commercially available and accessible.

By isolating L/Es from the IP holders’ rights, the VIP treaty negotiations could also set a dangerous precedent for other areas of IP law, particularly patent law. The U.S. advanced manufacturing industry continues to face the threat of erosion of patent rights in a range of international fora and negotiations. Other countries could refer to the WIPO VIP treaty as precedent for establishing broad exceptions and limitations to patent rights without adequate protections for innovators.

This threat is not merely theoretical; it is real. This February, the WIPO Standing Committee on the Law of Patents agreed to initiate a work program focused specifically on the exploration of an L/E approach to patent rights. In fact, later this year, the Committee will hold a special conference to discuss “countries’ use of health-related patent flexibilities.” This is a concerning first step, and the discussion of expansion of limitations could easily bleed into other areas of patent protection, for example, clean technologies, energy, medical technologies, and advanced manufacturing in general. Such competitive strategies are specifically being pursued by several leading emerging economies.

Patents and other industrial property rights continue to be under fire at the United Nations Framework Convention on Climate Change (UNFCCC), World Health Organization (WHO), and at the World Trade Organization (WTO) as well. Despite substantial differences between copyrights and patent protection and the regulatory frameworks and balance of rights and obligations on which they are based, the WIPO VIP treaty developments could pose a real and much broader IP-policy risk.

. . .

The letter was signed by Richard F. Phillips from Exxon Mobil Corp. The full list of names and companies on the first page of the letter are the following:

Officers

  • President Richard F. Phillips Exxon Mobil Corp.
  • Vice President Philip S. Johnson Johnson & Johnson
  • Treasurer Carl B. Horton General Electric Co.

Directors

  • Tina M. Chappell Intel Corp.
  • Mark Costello Xerox Corp.
  • William J. Coughlin Ford Global Technologies LLC
  • Robert DeBerardine Sanofi-Aventis
  • Gerald L. DePardo The Travelers Companies, Inc.
  • Anthony DiBartolomeo SAP AG
  • Bart Eppenauer Microsoft Corp.
  • Louis Foreman Enventys
  • Scott M. Frank AT&T
  • Darryl P. Frickey Dow Chemical Co.
  • Bernard J. Graves, Jr. Eastman Chemical Co.
  • Krish Gupta EMC Corporation
  • Henry Hadad Bristol-Myers Squibb Co.
  • Jack E. Haken Koninklijke Philips Electronics N.V.
  • Alan W. Hammond Life Technologies Corp.
  • Dennis R. Hoerner, Jr. Monsanto Co.
  • Michael Jaro Medtronic, Inc.
  • Lisa Jorgenson STMicroelectronics, Inc.
  • Charles M. Kinzig GlaxoSmithKline
  • David J. Koris Shell International B.V.
  • Allen Lo Google Inc.
  • Scott McDonald Mars Incorporated
  • Steven W. Miller Procter & Gamble Co.
  • Douglas K. Norman Eli Lilly and Co.
  • Elizabeth A. O’Brien Covidien
  • Sean O’Brien United Technologies, Corp.
  • Dana Rao Adobe Systems Inc.
  • Kevin H. Rhodes 3M Innovative Properties Co.
  • Mark L. Rodgers Air Products & Chemicals, Inc.
  • Curtis Rose Hewlett-Packard Co.
  • Matthew Sarboraria Oracle USA, Inc.
  • Manny Schecter IBM, Corp.
  • Steven Shapiro Pitney Bowes Inc.
  • Dennis C. Skarvan Caterpillar Inc.
  • Russ Slifer Micron Technology, Inc.
  • Terri H. Smith Motorola Solutions, Inc.
  • Daniel J. Staudt Siemens Corp.
  • Brian K. Stierwalt ConocoPhillips
  • Thierry Sueur Air Liquide
  • James J. Trussell BP America, Inc.
  • Katherine Umpleby Qualcomm, Inc.
  • Roy Waldron Pfizer, Inc.
  • Michael Walker DuPont
  • BJ Watrous Apple Inc.
  • Stuart Watt Amgen, Inc.
  • Paul D. Yasger Abbott Laboratories
  • Mike Young Roche Inc.

Staff

  • General Counsel Michael D. Nolan Milbank Tweed
  • Executive Director Herbert C. Wamsley

Who was the letter addressed to?

The primary recipient was:

  • Teresa Stanek Rea, the Acting Under Secretary of Commerce for Intellectual Property and the Director of the U.S. Patent and Trademark Office

The Letter also cc'ed several key figures in the Obama Administration who are players in shaping the Administration's position.

  • Hon. Victoria Espinel,, IP Enforcement Coordinator
  • Hon. Michael Froman, Assistant to the President of the United States and Deputy National Security, Advisor for International Economic Affairs (and designee for USTR head)
  • Hon. Robert Hormats, Under Secretary of State for Economic Growth, Energy, and the Environment
  • Hon. Cameron Kerry, General Counsel, U.S. Department of Commerce
  • Hon. Demetrios Marantis, Acting U.S. Trade Representative
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