A PUBLIC DOMAIN PROJECT FOR WIPO?

It’s no secret that, for a long time, it has not been the best of times at WIPO.

For whatever reason, WIPO has been singularly unsuccessful in the past decade at international norm setting. While it continues to take in enormous amounts of money from its patent and trade-mark operations, and has done a terrific job at domain name dispute arbitration, its treaty making role in substantive law has basically fizzled. The reasons are complex and the result is sad, because there are some really dedicated and highly professional people at WIPO and in various member states who have tried to get good things done.

WIPO’s last major treaty success, if it can be called that any more, was the 1996 WIPO WCT and WPPT internet treaties, which have had an embarrassingly slow uptake in terms of ratification. Amongst developed countries, only the USA, Japan and Australia (courtesy of now de-elected John Howard) have ratified. The EU, Israel, Ireland, Switzerland and Canada have signed but not ratified. (Belgium apparently ratified by mistake, contrary to EU procedures). The rest of the ratifiers are essentially a "coalition of the billing", ranging from Albania to Venezuela. China, in a class by itself, has recently acceded. (However, the US hardly views China as an example of wonderful IP practice, and has brought a sweeping complaint against it in the WTO).

The 1989 audiovisual film registration and “Washington” integrated circuit protection treaties fizzled and never came into force.

Patent law harmonization has fizzled.

Most notably , the long and painful attempt to develop an unnecessary broadcasters rights treaty appears to have finally gone into a permanent and irreversible coma, though it hasn’t yet been declared officially dead.

So, what could WIPO do now that might be useful and might actually have a successful outcome?

How about a treaty on the public domain?

The public domain is incredibly important. Even Canada’s Access Copyright professes to be interested in the “PD”, though its much touted project with Creative Commons seems to be nowhere in sight.

We could use a treaty about when and how works enter the public domain. I doubt that much can be done to undo the irreversible self-inflicted wound of life + 70 years concocted by the US and EU, and now inflicted bilaterally on many countries not sufficiently independent or well informed to resist the bilateral blandishments of the USA. Mexico has inexplicably gone to life + 100.

However, there is still a lot of room to deal with such issues as posthumous unpublished works, government works, works subject to conflict of laws, and maybe even works transmitted over the internet, etc. This is tremendously important. It is the sort of highly technical issue that WIPO once handled very well and in which the WTO lacks any expertise or experience. It’s in everyone interest to get this right - from reclusive scholars to corporate entertainment giants. And it could give WIPO an opportunity to get back into its groove.

HK