WIPO Copyright Meeting - May 2009

Following the recent Fordham Conference, I posted this comment on April 25, 2008 on the question of whether there could be a WIPO treaty for rights of the blind in the works:

• Despite the earlier promise (or at least the expectation) of a WIPO treaty for the rights of the blind, WIPO Deputy Director Michael Keplinger (whose appointment will shortly expire) indicated that no such thing was in the works. At best, we could expect “soft law.” Whether such an explicit statement reflects the wishes of the new WIPO DG, Francis Gurry, is not known because Mr. Gurry was not present. Of course, the WIPO Secretariat cannot unilaterally decide to launch a treaty process - such a mandate must come from the WIPO General Assembly. But the Secretariat can be very influential in such matters. One would think that a copyright treaty for the rights of the blind is about as close as one could get to a useful, necessary and relatively non-controversial multilateral issue. If WIPO is really unable or unwilling to press forward on this issue, there are bound to be more questions about WIPO’s future role in international norm setting and treaty making. Certain countries may think that they don’t need WIPO in such a role today or even in future. However, things could change very quickly in international politics and economics - especially when - not if - the “BRIC” (Brazil, Russia, India and China) countries (which were not represented on the faculty of this year’s Fordham conference and have not been invited to the ACTA table) assert the power that is rapidly shifting in their direction. Hopefully, the forthcoming SCCR meeting in May will shed some light and accomplish something more than calling simply for another semi-annual SCCR meeting at some presumably pleasant time in Geneva.

The WIPO Standing Committee on Copyright and Related Rights (SCCR) is meeting in Geneva next week. Here are the documents. Hopefully, we will see if WIPO can make any progress on this issue and whether Mr. Keplinger's comment was indeed reflective of the Secretariat's views.

For many reasons, WIPO has been unable to achieve any notable successes in international substantive law norm setting since the 1996 Internet treaties. Even these treaties, which are now almost thirteen years old, have yet to be ratified by major developed countries apart from the USA, Japan, Switzerland and Australia - the latter under intense American pressure and the profoundly American-deferential leadership of former Prime Minister John Howard. (The ratification by Belgium is regarded as something of an anomalous accident, since Belgium is part of the EU and the EU has not yet ratified).

The troubles of WIPO under its former DG, Kamil Idris, certainly didn't help. The result has been a wave of bilateral and plurilateral initiatives that have ignored WIPO and even the WTO. It will be recalled that the TRIPs agreement in the 1994 WTO Uruguay Round treaty was arguably a rebuke to WIPO, which under the late Arpad Bogsch had taken a rather purist approach to IP that was largely insulated from such worldly concerns as economics, trade policy and the needs of developing countries.

The potential apotheosis of plurilateralism may be the current ACTA initiative, which is a significant threat to a sustainable system of international norm setting in IP law.

WIPO needs a new and positive milestone and the world needs a newly renewed WIPO. The pieces and the players are in place, particularly Francis Gurry, the new DG at WIPO who has fully earned the significant respect and confidence he enjoys. If ever there was an issue around which well-intentioned countries could rally, a treaty for the rights of the blind could be that issue.

Next week, we may see a draft treaty or a proposal tabled by Brazil, as the Irish Times reports. Also, look to leadership from Jamie Love and his very worthy KEI NGO. Here's one of his blogs.

Finally, we await with interest where Canada will stand on all of this.

HK

PS: William New of IP Watch reports that:

A group of Latin American and Caribbean countries have declared their intention to support discussion of a proposal to negotiate a World Intellectual Property Organization treaty ensuring an exception to copyright for visually impaired readers who lack access to protected reading materials. The proposal is expected to be brought to the floor of a key copyright committee meeting this week.

Mr. New also reports on other aspects of the forthcoming meeting, including this:

The committee will elect a chair for the meeting. In the case of the SCCR, unlike any other WIPO committee, the same person has been chair for as long as a decade: Jukka Liedes of Finland. He has generally shown sympathy for developed country – especially European – perspectives. It is unclear why developing countries do not push an alternative candidate for the chairmanship.