Still waiting for a collective response
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Christophe Roulet
Editor-in-chief, HH Journal
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As the recent Intellectual Property Day at Geneva University’s School of Law clearly spelled out, counterfeiting is a global scourge and the weapons with which to fight it still lack bite. The last in a three-part file.
International cooperation is one of the cornerstones of the fight against counterfeiting, as organised crime has spread its tentacles across all five continents. However, the different international bodies still have some way to go towards reconciling the different interests of their member-states. The question was debated at a study day organised by Geneva University’s School of Law under the heading “The fight against counterfeiting and piracy.”
The role of WIPO
As Heike Wollgast, Legal Officer with the Enforcement and Special Projects Division at the World Intellectual Property Organization (WIPO), was at pains to point out, WIPO’s function is not to draft model legislation on intellectual property rights. Its role is limited to policy debates and to providing its members with technical assistance, including in the legal field. It is therefore not within WIPO’s scope to take concrete action to protect intellectual property in the field. She went on to explain how counterfeiting and piracy clearly fall within WIPO’s mandate, but the most appropriate legal framework for this is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) (see box). The Advisory Committee on Enforcement gives WIPO member-states a platform to share their experience and debate which measures to take in order to reinforce intellectual property rights in their own country.
Heike Wollgast also explained how two different approaches had emerged within this committee. “Certain developed countries would like the committee to tackle a new treaty modelled on a proposal put forward by Italy at the last WIPO General Assembly, a suggestion which not all members, in particular certain developing countries, support.” The enforcement of measures to protect intellectual property are also discussed elsewhere within WIPO, as Heike Wollgast reminded the audience. Last year, developed countries entered into negotiations with the aim of reaching an anti-counterfeiting trade agreement. However, these ongoing talks are still in the early stages. According to Intellectual Property Watch, the toughest agreements in terms of intellectual property rights enforcement are the bilateral free trade agreements between developed countries, and in particular Europe and the United States.
Zero consensus at the WTO
For Wolf Meier-Ewert, Legal Affairs Officer at the WTO Intellectual Property Division, the main difficulty is to introduce standard enforcement measures across the globe when certain aspects of intellectual property rights are far more obvious in certain parts of the world than others. It would seem, then, that there is no more consensus at the WTO as to which measures to take. “The same developed countries have been trying for years to get the WTO Council to address enforcement measures as part of the TRIPS Agreement, but Brazil, China and India have so far refused. They claim this could be used to point the finger at countries whose enforcement measures are seen to fall short of international standards.”
Despite such differences of opinion, very few cases have been brought before the WTO Arbitration Commission, and the majority of those which have concerned the compatibility of national law with the obligations set out in the TRIPS Agreement and were not directly related to intellectual property rights. The only major dispute has been the United State’s case against China concerning the threshold below which sellers of counterfeit goods cannot be prosecuted, and the sale of counterfeit goods from which the replica logo has been removed. International organisations clearly have their work cut out if they are to reach effective measures to combat piracy and counterfeiting. Even at European level, countries have yet to align their criminal laws, and the TRIPS Agreement is still by no means as precise as the different national laws…
THE TRIPS AGREEMENT
The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), negotiated in the 1986-94 Uruguay Round, introduced intellectual property rules into the multilateral trading system for the first time.
The agreement covers five broad issues:
- How should basic principles of the trading system and other international intellectual property agreements be applied?
- How to give adequate protection to intellectual property rights?
- How should countries 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.
To find out more:
http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm
