The following is the general statement that KEI delivered to the WIPO General Assembly on September 29, 2009.
General Statement of KEI
WIPO 2009 General Assembly
September 29, 2009
ACTA
Outside of WIPO, some countries are involved in secretive negotiations on a new Anti-Counterfeiting Trade Agreement (ACTA). KEI asks WIPO to adopt a resolution calling for an end to the secrecy of this negotiation. Global norms for the enforcement of IP should be transparent and benefit from comments from the public before decisions are made on substantive provisions.
Patents
In the areas of patents, KEI is encouraged by the current SCP work program, including in particular the proposed work on access to medicine, the research exception and issues relating to patents and standards.
KEI suggests WIPO undertake a study of the issue of state practice concerning requirements for the disclosure of patent claims when standards are proposed, and to consider a possible WIPO instrument that would create a global system of required disclosures for some important knowledge interfaces.
WIPO should also examine the flexibility in the TRIPS to allow non-voluntary uses of patents under Article 44.1 and 44.2 of the TRIPS, and determine if this flexibility is at risk from standards that have been advanced in the ACTA negotiations that would change global norms for issuing injunctions and which would increase the damages from infringement.
KEI believes Article 44 of the TRIPS provides considerable flexibility for the implementation of liability rules that may be appropriate for implementing patents in the areas of innovation inducement prizes for medical innovation, climate change, and standards on essential technologies. This flexibility is at risk in the secretive ACTA negotiations.
Copyrights
With regard to the SCCR, KEI opposes work on a new treaty for broadcasting organizations. There is no evidence such a treaty is needed, and if implemented as a new intellectual property right for entities that merely assemble content for distribution, it presents risks to both consumers and creative communities, and will greatly concentrate intellectual property rights and transfer wealth to giant foreign firms that control the global distribution of copyrighted works.
KEI encourages the SCCR to focus on a robust work program on copyright limitations and exceptions that addresses a broad set of exceptions, including those dealing with people with disabilities, libraries, education, distance education, archives, orphaned works, innovative services, translations, excessive pricing and the control of other anti-competitive practices.
KEI does not believe that deep harmonization of all copyright limitations and exceptions is needed or appropriate in most cases. In general, it will be best if the global rules provide for the appropriate level of freedom to operate, so that national laws can experiment to find ways to balance and protect both consumers and creative communities, while using a diversity of approaches that are consistent with domestic legal traditions and values.
However, in some special cases, global norms will be useful, including (in some cases) minimum limitations and exceptions for copyright. In particular, where cross-border uses of works or technologies are necessary, some global norms will be needed to stimulate public and private investments in such services. For example, cross-border uses that will or may benefit from global norms include:
- the sharing of accessible works for persons who are blind or have other disabilities;
- distance education, delivered across borders;
- the cross border sharing of works by libraries;
- the regulation of Digital Rights Management (DRM) and Technical Protection Measures (TPMs), as they relate to the exercise of legitimate uses of works, or the control of anti-competitive practices; and
- the development of some innovative services,
Global norms are durable, and should be done correctly. While some of these projects are ready now, others may take many years before sufficient analysis, consultation and consensus emerges and there is a strong basis for global norm setting.
A treaty for sharing works in accessible formats for persons who have reading disabilities can be done now, and is long overdue.
Work on reading disabilities should not be delayed until a broader work program on copyright limitations and exceptions is completed, and indeed, neither should work on distance education, libraries or other topics be limited by requirements that the entire work program be finished. For norm setting, the SCCR should move each project forward when it is ready – not before, and not much after.
In the case of reading disabilities, the SCCR should aim to authorize a diplomatic conference at the 2010 General Assembly meeting. That diplomatic conference should be held as early as Spring 2011. Work on other norm setting activities involving limitations and exceptions should go forward in parallel, including but not limited to proposals that may be offered in the areas of distance education and libraries.