[Ip-health] TWN Statement on Advisory Committee on Enforcement at WIPO General Assembly 26th September 2013

K.M. Gopakumar kumargopakm at gmail.com
Fri Sep 27 08:35:46 PDT 2013

.  Thank you Madam. Chair

We take this opportunity to stress again that the efforts to address the
issue of IP enforcement should be done in a balanced manner and guided by
the Development Agenda principle.

We express our concern with regard to the growing number of TRIPS Plus IP
enforcement initiatives including promotion of anti-counterfeit
legislations in developing countries.

IP protection and its enforcement should respect other competing legal
obligations of Member States especially human rights obligations such as
the right to development, the right to health, the right to education and
the right to enjoy the benefits of scientific progress and its applications.

The flexibilities existing in IP regime not only covers protection of IP
but also enforcement of IP. As part of UN family it is important for WIPO
to discuss the flexibilities with regard to enforcement of IP rights.

A maximalist approach on IP enforcement can hamper the technological
catching up process of developing countries.  Further, it may hamper
legitimate business as happened in the case of Apple.

After the US International Trade Commission’s ordered an import ban on
Iphone 3GS, Iphone 4 and the 3G-capable first-gen iPad and iPad
the grounds that Apple violated a Samsung patent, the US President
intervened to protect the commercial interest of Apple.  US President
exercised an executive power to bypass a quasi judicial order. This is a
good example of using flexibilities existing in national law to curb the
harmful IP enforcement initiatives.

The veto exercised by President Obama strongly suggests that other
developing countries should incorporate similar flexibilities in their
national law and use such powers to especially protect the vast needs of
their population in terms of the right  to health, right to Food, right to
enjoy the progress of science and technology and right to development. In
other words developing countries should use not only to protect the
commercial interest in the case of US but also to protect the human rights.

We should shed double standards and allow developing countries to use the
flexibilities effectively and efficiently. Towards this end ACE should
initiate discussion on the flexibilities existing with regard to IP

Further, we also take this opportunity to express our concerns on the
promotion of public private partnership on IP enforcement. The inherent
conflict of interest of private sector having with regard to the protection
and enforcement of IP would vitiate the neutrality and accountability of
administration of justice. Hence, PPP model for IP enforcement should not
be promoted as a vehicle for IP enforcement.

Further, the Secretariat should avoid the financial and technical
collaborations with agencies that promote maximalist IP enforcement

In carrying out the activities on IP enforcement we urge the Secretariat to
follow an evidence-based approach. We call upon the secretariat to prepare
the information and communication materials based on independent and
verifiable evidence. The materials should not cite the data provided by
industry associations and the studies funded by industry.
Lastly we also urge transparency and accountability in Secretariat
activities with regard to IP enforcement.  Hence, the Secretariat
activities in the area including the details of meetings, presentations,
details of resource persons etc. should be put it in the public domain.

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