[Ip-health] IP-Watch: Governments, Industry Offer Mixed Hope For Multilateral IP Policymaking

Thiru Balasubramaniam thiru at keionline.org
Wed Nov 11 07:46:59 PST 2015


Governments, Industry Offer Mixed Hope For Multilateral IP Policymaking


WASHINGTON, DC — The sun may be setting on multilateral policymaking in
intellectual property in the eyes of industry, but leading United States
and European Union representatives insist on its continued vital role in
trade and economy. But a “new narrative” is needed as they emphasise
bilateral and plurilateral agreements.

A panel entitled “Has the Sun Set on Multilateral Rulemaking on IP?” was
held at the US Chamber of Commerce Global IP Summit on 6 November.

Pavel Svoboda, chair of the European Parliament Committee on Legal Affairs
(JURI), said JURI has a broad competence and is responsible for IP law,
among other issues.

The committee visited US counterparts in Washington, DC last week. The main
reason for their visit was to hold exchanges of views with officials and
stakeholders on matters including substantive IP law.

Exchanges included the Supreme Court, with Justice Breyer, representatives
of the Obama administration including the US IP enforcement coordinator, US
Patent and Trademark Office (USPTO), US Copyright Office, Office of the US
Trade Representative (USTR), and of the House of Representatives Judiciary
Committee, industry representatives and civil society, he said.

On multilateral rulemaking in IP, he highlighted three “very timely”
questions involving IP relating to the 28 member states of the European
Union. These are the Transatlantic Trade and Investment Partnership (TTIP),
reform of copyright in the digital environment, and geographical

On the TTIP IP chapter, the two sides have so far agreed on four sections,
he said. These are: a list international treaties to which both are party;
general principles such as IPRs as a tool for innovation, growth and jobs;
and targeting legal commitments, and identifying areas for cooperation.

The European Commission negotiates on behalf of the EU, and published a
position paper on 20 March on these sections. The EU is still waiting for
the US side to identify its priorities, he said.

Svoboda described activities on different IP rights, including patents,
trademarks, and copyright.

On copyright, he said the Commission “has identified the reform of
copyright to the digital environment as a priority as part of the setting
up of the Digital Single Market, which is intended to remove barriers to
the internal market in the digital arena.”

A legislative proposal on the cross-border portability of copyrighted works
will be presented in December, and a further proposal on other forms of
so-called geo-blocking will be presented in the spring of 2016, he said.
“They are likely to propose further harmonisation of national legislation,
in particular limitations and exceptions to copyright,” said Svoboda.

The European Parliament and the Committee on Legal Affairs are closely
monitoring these developments, he added, and have set up a working group to
review the different options for policy reform, and to hear the views of

Parliament in July adopted a resolution aimed at further harmonising
limitations and exceptions to copyright, giving recommendations to the
Commission on the upcoming reform.

GIs: Vital Economic Component or Tail Wagging the Dog?

Svoboda and George York, deputy assistant US Trade Representative (USTR)
for intellectual property and innovation, swapped differing views on
geographical indications, products with particular characteristics from
certain geographical regions.

Svoboda said GIs are “very much” part of the TTIP negotiations, and
stressed the importance of this form of IPR to the European Union as a
cultural area and concerning products such as wine and cheese.

He said GIs are “economically very important,” with about 20 percent of GI
products from the EU being exported for a total of 11.5 billion euros. The
US is by far the leading destination country with 3.4 billion euro in
imports of GI products, which accounts for 34 percent of its food and
beverage imports from the EU, he said.

“The efficiency of the EU GI system is the basis for the competitiveness
and success of our high quality, high value products,” said Svoboda. “When
it comes to the current bilateral agreement between the US and EU on wine
and spirits, the protection of these quality products has been a decisive
factor in the success of US and EU exports in the sectors.”

He quipped that it would be “interesting” to see how the election of Paul
Ryan of the cheese-producing state of Wisconsin as the US Speaker of the
House will influence the discussion.

“The issue of GIs will continue to be high on the agenda for discussion in
TTIP in the coming year,” he said. And in parallel, EU institutions are
discussing the possibility of a pan-European system for the protection of
non-agricultural GIs.

USTR negotiator York, for his part, opened by stressing that people in the
US need to understand why IP rights are critical to its economy and
society. For instance, he said, US services exports have a surplus, unlike
its goods exports, “and that’s driven by value by IPR and IPR licensing.”

“This is a critical feature of our economy, not only for the jobs it
creates, but the things it creates, the goods and services, the innovation,
life-saving medicines and so forth,” York said.

He said multilateralism is one part unilateralism, one part bilateralism –
as they have to work with key allies – … and plurilaterism. He said at
WIPO, the US has its “friends of inclusiveness.” At the World Trade
Organization, it has the “friends of innovation,” working with partners
(both developed and developing) to “identify narratives,” on why IP is
important to those countries.

But, he said, “sometimes multilateralism can become stale. I’ve seen notes
from some of my Indian colleagues that are literally yellow, they haven’t
changed in a long time. So we need to reimagine how we talk about IP.”

“We know it’s important, but sometimes we have to come up with a new
narrative, a new vocabulary,” said York.

On GIs, York countered Svoboda positive statistics with some data he said
shows that GIs are a very small part of the overall EU economy, benefiting
only a few EU members.

“Our data shows that out of the European Union, this is a relatively niche
production, and it has the potential to be the tail wagging the dog of a
really important discussion between the transatlantic communities about
what’s really critical to our economies,” he said.

The EU has produced studies that talk about the job growth, GDP value by
member state of various forms of IP, he said. And GIs rank in “a distant
last,” he said, accounting in 13 member states for “0.0 percent” of jobs,
and in 10 member states, “0.0 percent of GDP.” Very few member states go
above .1 percent for employment with GIs as a percentage of total
agricultural production, he said.

“Total agricultural production of GIs in Europe is 5.7 percent. This is
quite low,” he said, adding, “That means non-GIs account for basically 95
percent of production and 98 percent of exports of the EU.”

He further said that in the EU, GIs have shown “wild fluctuations” in
premiums obtained. And he remarked on Europe’s move to extend GIs to
non-agricultural products by quipping, “We’re looking forward to losing our
ability to uses Argyle socks here in the United States.”

York said EU GI products do “staggeringly well” in the US market, while
conversely, US products that are competing with GIs in Europe are blocked
there. He said for instance that American feta cannot be sold, even though
several EU countries make and sell feta in the EU market.

“Our guys can’t get into the EU because of GI-related IP market access
barriers,” he said. “The TRIPS Agreement talks about legitimate products
and IPR protection, but IPR protection should not lead to illegitimate
trade barriers.”

“What’s important for this group is that multilateralism not be driven by
niche issues,” York concluded.

WIPO Work Positive, But Last Assemblies “One for the Record Books”

Paul Salmon, US Patent and Trademark Office (USPTO) senior counsel in the
Office of Policy and International Affairs, talked about the World
Intellectual Property Organization, giving a strongly positive view on the
UN agency’s work despite difficulties in treaty negotiations.

“WIPO just held its annual meeting in October, and the narrative is that
WIPO is broken, WIPO is stuck in the norm-setting area, but I think people
don’t recognise that WIPO is actually making tremendous progress beneath
the radar,” he said. In particular, he said “WIPO runs three very
successful registration systems, one for the patents, the Patent
Cooperation Treaty system, for trademarks the Madrid system, and for
industrial designs the Hague System, that fund 95 percent of WIPO’s budget.”

“The US and EU agree on 99.9 percent of all issues in WIPO, and have used
it as a proving ground to advance the protection of IP globally from its
earliest days,” he said.

“We’ve seen norm-setting stall in the past, but WIPO had an incredible
productive era of norm-setting just after the TRIPS agreement. The landmark
WIPO internet treaties are one example,” said Salmon.

He did say that this year’s annual WIPO General Assemblies in October “was
one for the record books.” He said it “went until 5:45 am, but decisions
were made on all of the substantive items and they were positive.”

Salmon highlighted the “recognition that one registration system at WIPO
related to appellations of origin, the Lisbon System, had taken an action
to expand its mandate without the approval of the full [WIPO] membership.”

“The United States and other ‘friends of inclusiveness’ that George [York]
referred to, insisted that this system now become responsible for its own
financing,” he said. “That did take up a lot of the air in the room during
the WIPO Assemblies. Some people called what is known as the “GA” [General
Assemblies] the “GI” this year because GIs loomed so large. But we think
the result was a success in that Lisbon members took ownership of their
system, and recognised that they have to find solutions to funding.”

Salmon then highlighted USPTO initiatives that are “bearing fruit,” such as
the trilateral group (US, EU, Japan), and the IP-5 (trilateral plus China,
Korea), which account for 80 percent of the world’s patent filings, and 95
percent of all work done under the Patent Cooperation Treaty. This makes
close cooperation critical to advancing the multilateral level, he said.

Salmon took the opportunity to list several upcoming events being hosted by
the USPTO. In December, the “Trademark 5” are meeting on 1-2 December for a
number of cooperation projects, including one called trademark
identification. There are now some 16,000 trademark goods and services
identifiers have been harmonised, which will help protect trademarks around
the world in those five offices, he said.

And the inaugural meeting of the “Industrial Design 5” will meet on 4-5
December. There are a number of projects to advance work among those
offices as well as in WIPO.

And then in May, the IP-5 will be hosted at USPTO, he said. Work done by
these offices include the Patent Prosecution Highway, which now has 30
countries, that greatly facilitates getting patents in multiple
jurisdictions much quicker and much cheaper. The Global Dossier is another
initiative that will ultimately be a single portal for … patenting in
multiple jurisdictions, bringing many of the advantages of the PCT at
greatly reduced costs.

Industry: ‘Late in the Night’ for Multilateral IP Policy

Stephen Ezell, vice president for global innovation policy at the
Information Technology & Innovation Foundation (ITIF), said it was asked if
the sun is setting on multilateral rulemaking on intellectual property.
“Unfortunately, I think that it’s getting late in the night at least,” he
said. “The reality is that too many in the global development community
still view strong intellectual property rights as a hindrance to developing
country economic growth.”

For example, he cited the United Nations Conference on Trade and
Development (UNCTAD), which he said in its 2014 Trade and Development
Report wrote: “strong IP protection may have little or no impact on
innovation, while reducing the … of core inputs and technologies and their

He remarked, “That’s astounding. A recent World Bank report wrote that
TRIPS [the WTO Agreement on Trade-Related Aspects of Intellectual Property
Rights) extracts at least $20 billion in rents annually from developing
countries to technology-creating countries in the form of pharmaceutical
patents, industrial designs, and other forms of IP.”

And, he said, India recently went before the TRIPS Council and argued that
TRIPS establishes a ceiling in terms of IP.

“In short, I think it’s quite disappointing that at a time when
intellectual property has become more important to the global economy and
economic growth than ever, in some corners the global consensus regarding
IP’s role in economic growth has unfortunately actually waned,” he said. “I
think too often countries take the short-term expediency route at the
expense of the longer term maximising global innovation route and
perspectives toward IP. Take the debate over access to medicines, too many
countries would rather have access to all medicines available today and
maybe even a little bit of their manufacturing, even if it means
sacrificing a system that incentivises investment…. In other words, too
many countries are trading today for tomorrow.”

Chamber Applauds Time-Limited LDC Waiver at WTO

Separately, Chamber Global IP Center Executive Director Patrick Kilbride
offered an editorial comment as panel moderator. He said to US negotiator
Salmon: “We want thank you and your colleagues for securing a time-limited
LDC waiver on implementation of pharmaceutical aspects of TRIPS. If there’s
one core issue … in the multilateral space, it’s to end the perpetuation of
the notion that intellectual property is somehow a barrier to access to
innovative products or to development.”

“Telling developing nations not to implement IP is like telling them not to
build roads and ports,” Kilbride said. “It’s nonsense and we appreciate
your leadership.”

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