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World Trade Organization (WTO)

  • An organization for trade opening.
  • A forum for governments to negotiate trade agreements.
  • a place for them to settle trade disputes.
  • WTO operates a system of trade rules. Essentially, the WTO is a place where member governments try to sort out the trade problems they face with each other.

WIPO

WTO Dispute settlement

WTO fact sheet

  • WIPO is the global forum for intellectual property policy, services, information and cooperation
  • a self-funding, specialized agency of the United Nations, with 188 member states
  • WIPO Convention established WIPO in 1967.
  • If WTO MS are violating trade rules, other MS will use the multilateral system of settling disputes instead of taking action unilaterally.
  • the responsibility of the Dispute Settlement Body consisting of all WTO members.
  • DSB establishes “panels” of experts
  • Panels are like tribunals. But unlike in a normal tribunal, the panellists are usually chosen in consultation with the countries in dispute.
  • Panelists serve in their individual capacities.
  • DSB monitors the implementation of the rulings and recommendations, and has the power to authorize retaliation when a country does not comply with a ruling (sanctions).
  • Location: Geneva, Switzerland
  • Established: 1 January 1995
  • WTO is the successor to the GATT (established 1947)
  • Created by: Uruguay Round negotiations (1986-94)
  • Membership: 160 countries on 26 June 2014
  • Budget: 197 million Swiss francs for 2014
  • Secretariat staff: 634
  • Head: Roberto Azevêdo (Director-General)

WTO functions

TRIPS [ trade-related aspects of intellectual property rights ]

  • negotiating the reduction or elimination of obstacles to trade (import tariffs, other barriers to trade) and agreeing on rules governing the conduct of international trade (e.g. antidumping, subsidies, product standards, etc.)
  • administering and monitoring the application of the WTO's agreed rules for trade in goods, trade in services, and trade-related intellectual property rights

TRIPS

The TRIPS covers five broad issues:

  • how basic principles of the trading system and other international intellectual property agreements should be applied
  • how to give adequate protection to IPR
  • how countries should enforce those rights adequately in their own territories
  • how to settle disputes on intellectual property between members of the WTO
  • special transitional arrangements during the period when the new system is being introduced.
  • The TRIPS, negotiated in the 1986-94 Uruguay Round, introduced intellectual property rules into the multilateral trading system for the first time
  • The extent of protection and enforcement of IP rights varied widely around the world; and as IP became more important in trade, these differences became a source of tension in international economic relations.
  • New internationally-agreed trade rules for intellectual property rights were seen as a way to introduce more order and predictability, and for disputes to be settled more systematically.

WTO functions

TRIPS basic principles

  • National treatment - treating one’s own nationals and foreigners equally. Also a key principle in other intellectual property agreements outside the WTO
  • Most-favoured-nation treatment - equal treatment for nationals of all trading partners in the WTO; non-discrimination among countries.
  • The TRIPS Agreement has an additional important principle: IP protection should contribute to technical innovation and the transfer of technology. Both producers and users should benefit, and economic and social welfare should be enhanced, the agreement says.

TRIPS - enforcement of IPR

TRIPS common ground-rules

  • Having IP laws is not enough. They have to be enforced. This is covered in Part 3 of TRIPS.
  • Governments have to ensure that IPR can be enforced under their laws, and that the penalties for infringement are tough enough to deter further violations.
  • The procedures - fair and equitable, not unnecessarily complicated or costly, should not entail unreasonable time-limits or unwarranted delays.
  • Part 2 of the TRIPS looks at different kinds of IPR and how to protect them. The purpose is to ensure that adequate standards of protection exist in all MS.
  • Starting point the Berne convention and the Paris convention
  • Some areas are not covered by these conventions. In some cases, the standards of protection prescribed were thought inadequate.
  • the TRIPS adds a significant number of new or higher standards.

TRIPS - enforcement of IPR

  • monitoring and reviewing the trade policies of our members, as well as ensuring transparency of regional and bilateral trade agreements
  • settling disputes among our members regarding the interpretation and application of the agreements
  • building capacity of developing country government officials in international trade matters
  • assisting the process of accession of some 30 countries who are not yet members of the organization (e.g. Azerbaijan)
  • conducting economic research and collecting and disseminating trade data in support of the WTO's other main activities
  • explaining to and educating the public about the WTO, its mission and its activities.
  • Rights to ask a court to review an administrative decision or to appeal a lower court’s ruling.
  • TRIPS describes how enforcement should be handled, including rules for obtaining evidence, provisional measures, injunctions, damages and other penalties.
  • Courts should have the right to order the disposal or destruction of pirated or counterfeit goods.
  • Wilful trademark counterfeiting or copyright piracy on a commercial scale should be criminal offences.
  • IPR owners can receive the assistance of customs authorities to prevent imports of counterfeit and pirated goods.

WIPO convention

Alternative Dispute Resolution

  • [..]
  • Desiring, in order to encourage creative activity, to promote the protection of intellectual property throughout the world,
  • The World Intellectual Property Organization is hereby established.[..]
  • The objectives of the Organization are:
  • (i) to promote the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization,
  • (ii) to ensure administrative cooperation among the Unions.
  • The WIPO Arbitration and Mediation Center is a neutral, international and non-profit dispute resolution provider that offers time- and cost-efficient alternative dispute resolution (ADR) options.
  • WIPO mediation, arbitration, expedited arbitration, and expert determination enable private parties to efficiently settle their domestic or cross-border IP and technology disputes out of court.
  • The WIPO Center also offers domain name dispute resolution services.

WIPO Arbitration and Mediation Center

  • The subject matter of these proceedings includes both contractual disputes (e.g. patent and software licenses, trademark coexistence agreements, distribution agreements for pharmaceutical products and research and development agreements) and non-contractual disputes (e.g. patent infringement)

What WIPO does?

WIPO Academy

  • Face-to-face training and distance learning courses on intellectual property
  • General and specialized IP training for diplomats and government officials.
  • a policy forum to shape international IP rules
  • global services to protect IP across borders and to resolve disputes
  • IP registration systems
  • arbitration and mediation center
  • Global IP Infrastructure (IP databases and other digital IP information)
  • Cooperation with governments and non-governmental organizations
  • helping countries design, develop and implement national IP

WIPO-Administered Treaties

  • WIPO administers 26 treaties including the WIPO Convention:
  • Beijing Treaty on Audiovisual Performances
  • Berne Convention for the Protection of Literary and Artistic Works
  • Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite
  • Paris Convention for the Protection of Industrial Property
  • Patent Law Treaty
  • Trademark Law Treaty
  • WIPO Copyright Treaty
  • WIPO Performances and Phonograms Treaty
  • etc.

Internationalization of IP

Sample Cases

  • In global economy intangible objects are instantly available everywhere.
  • little sense to adopt rules to protect IP without taking account of the laws and practices of other nations and of international organizations.
  • Protecting only domestic works or inventions -counterproductive
  • WTO DSB
  • WIPO mediation and arbitration

Australia — Tobacco Plain Packaging (Indonesia) - TRIPS

  • On 20 September 2013, Indonesia requested consultations with Australia concerning certain Australian laws and regulations that impose restrictions on trademarks, geographical indications, and other plain packaging requirements on tobacco products and packaging
  • Indonesia claims that Australia's measures appear to be inconsistent with Australia's obligations under TRIPS
  • the panel expects to issue its final report to the parties not before the first half of 2016

WIPO arbitration case example -Telecom Infrastructure Dispute

Phases of internationalization

China — Measures Affecting the Protection and Enforcement of Intellectual Property Rights

  • Two US companies concluded an agreement for the purchase of infrastructure equipment for wireless communication networks.
  • WIPO Arbitration Rules clause
  • The seller delivered the equipment which was used by the purchaser despite alleged performance shortfalls.
  • Several years after the delivery of the system, the purchaser filed a request for arbitration including, inter alia, claims for breach of contract and damages.
  • The parties chose to appoint as sole arbitrator one of several candidates proposed by the WIPO Center: a lawyer with considerable experience with telecom infrastructure disputes.
  • The sole arbitrator considered substantial documentary evidence, held a three-day hearing in California for the cross-examination of witnesses, and rendered a final award rejecting the claims.
  • On 10 April 2007, the United States requested consultations with China concerning certain measures pertaining to the protection and enforcement of IPR in China
  • The US claims :
  • the lack of criminal procedures and penalties for commercial scale counterfeiting and piracy in China
  • Authors of works whose publication or distribution has not been authorized (and whose publication or distribution is therefore prohibited) appear not to enjoy the minimum standards of protection specially granted by the Berne Convention in respect of those works
  • 2009 - The panel recommended that China bring the Copyright Law and the Customs measures into conformity with its obligations under the TRIPS Agreement
  • 2010, China and the US notified the DSB of Agreed Procedures

WIPO mediation cases

Brazil v European Union

— Seizure of Generic Drugs in Transit

  • On 12 May 2010, Brazil requested consultations with the EU and the Netherlands regarding repeated seizures on patent infringement grounds of generic drugs originating in India and other third countries but transiting through ports and airports in the Netherlands to Brazil and other third country destinations.
  • Brazil alleges that the various European Union and Dutch measures at issue are inconsistent with the obligations under TRIPS
  • settled
  • disputes between private parties
  • Confidentiality is respected
  • E.g. A Dutch company concluded a copyright license with a French company regarding the publication of a technical publication. The license agreement includes a WIPO mediation clause.
  • The licensee became insolvent and defaulted on the royalties due under the license.
  • When the licensor requested the mediation procedure, the Center, after consultation with the parties, and with approval of the court appointed liquidator, appointed an intellectual property specialist as the mediator. Following two meetings between the parties and the mediator, a settlement (!) agreement was concluded.
  • A. The early days
  • B. Pre-1883: The Bilateral Phase
  • C. 1883-1971: The "BIRPI" Phase
  • D. 1971-1994: The TRIPS Phase
  • E. 1994-Today: The Paradigmatic Phase

E. 1994-Today: The Paradigmatic Phase

A. The early days

  • The most striking feature of the current which began with the TRIPS Agreement, is the emergence of new IP concerns, from biotechnological patents to MP3 downloads, cloud computing, databases, computer programs
  • challenges: protection of traditional knowledge
  • broad range of subject matters, e.g. traditional agricultural, biodiversity-related and medicinal knowledge and folklore
  • IP protection only limited time
  • challenges: the internet
  • copyright licensing
  • Either custom or law granted monopolies for acts of creation or invention at least as early as the 17th century
  • For example, Galileo Galilei used a customary Italian law to obtain royalties on various optical devices that he had invented and had permitted others to manufacture
  • the Statute of Anne of 1710 granted publishers and authors a limited monopoly on books published or written.

B. Pre-1883: The Bilateral Phase

D. 1971-1994: The TRIPS Phase

  • 1971 - the signing of the Paris Act of the Berne Convention, the progressive application of the norms and standards negotiated at the Stockholm Conference
  • 1994 - the signing of the TRIPS Agreement
  • the face of international IP changed rapidly due to pressure from perceived trade imbalances stemming from unequal intellectual property regimes
  • TM and other IP rights concerning the marking of goods and services started to be viewed as essential to national and international trade
  • if a nation only protected domestic literary and artistic works, foreign works would become available in "pirate" form, usually at a much lower price.
  • the concept of "national treatment" - foreign nationals are to be treated in a manner no less favorable than national rightsholders: all works were equal
  • countries started entering into bilateral agreements, mutually granting national treatment to the nationals of partner countries
  • proliferation created a gigantic spider web of treaties

D. 1971-1994: The TRIPS Phase

C. 1883-1971: The "BIRPI" Phase

  • several African, Asian, Latin American and Middle Eastern countries began to show active presence at every international IP negotiations
  • these countries have different backgrounds and traditions - agreeing on new norms, standards and procedures far more difficult than in the past
  • GATT Secretariat had no IP expert on staff
  • The real multilateral negotiations on substance thus started only in the early 1990s
  • Even at its signing in 1994, the TRIPS Agreement was already outdated due to the very rapid technological progress between 1990 and 1994.
  • the complex international legal situation led to the negotiation and conclusion of the two major international treaties:
  • the Paris Convention 1883
  • the Berne Convention 1886
  • the "BIRPI phase," because these treaties were administered by the predecessor of the WIPO, the Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectuelle (BIRPI)
  • both treaties were revised several times during this phase
  • New rights were added
  • IP registration systems were created
  • Madrid agreement 1981
  • Patent cooperation treaty 1970

THE INTERNATIONALIZATION OF INTELLECTUAL PROPERTY

Andris Tauriņš

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