PHM-Exch> Letter to World Intellectual Property Organization on enforcement & public health

[Claudio Schuftan]

From: Sangeeta <ssangeeta at myjaring.net> Third World Network

Next week on 30th November to 1st Decmber the WIPO Advisory Committee on
Enforcement (ACE) will be meeting.

In light of the enforcement activities of WIPO, i.e. Its unbalanced
approach, links to industry and propaganda on public health and safety, we
thought it would be good to send a letter to the DG in time for the WIPO
ACE discussions.

Please see the letter below. In the letter we also challenge WIPO's
partnership with BASCAP and INTA.

*If you would like to sign on to the letter as an organization or an
individual, just send me your name, organization, country by 29th November
2011. Please write to sssangeetash at gmail.com or ssangeeta at myjaring.net
*
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LETTER TO MR. FRANCIS GURRY
DIRECTOR GENERAL OF WORLD INTELLECTUAL PROPERTY ORGANIZATION

29th November 2011

Mr. Francis Gurry
Director General
World Intellectual Property Organization

Intellectual Property Enforcement activities in WIPO

Today it is widely known that proponents of a “maximalist agenda” on
intellectual property (imade up of OECD businesses and governments) are on
a campaign to increase IP protection and enforcement far beyond the minimum
standards of the TRIPS Agreements in ways that are "TRIPS-Plus-Plus"[1]
<#_ftn1> . However such an approach disregards the development dimension,
undermines public interests and compromises fundamental human rights.

In 2007, the WIPO General Assembly adopted Recommendation 45 of Development
Agenda that explicitly mandates WIPO: “To approach intellectual property
enforcement in the context of broader societal interests and especially
development-oriented concerns, with a view that “the protection and
enforcement of intellectual property rights should contribute to the
promotion of technological innovation and to the transfer and dissemination
of technology, to the mutual advantage of producers and users of
technological knowledge and in a manner conducive to social and economic
welfare, and to a balance of rights and obligations”, in accordance with
Article 7 of the TRIPS Agreement.”

A number of other recommendations call for more transparency in WIPO’s
activities particularly its technical assistance activities and stress on
the need to infuse development considerations into WIPO’s activities and
debates.

Against this background, the undersigned are seriously concerned with
WIPO’s approach to IP enforcement. In particular we would highlight the
following concerns:

1. Transparency: Despite the adoption of Rec. 1 and 5, little information
is provided on WIPO’s website on technical assistance activities undertaken
by WIPO. For instance in the Annex of WIPO/ACE/7/2, WIPO provides a list of
activities it has undertaken in the area of IP enforcement however no
information is available on the nature of such activities including
participants lists, lists of speakers, content presented, outcome of the
meetings etc. In fact many of the meetings mentioned in the Annex are not
even listed on WIPO’s website. The lack of transparency is unbecoming of an
intergovernmental organization and undermines implementation of Development
Agenda in WIPO.

2. Unbalanced Approach to Enforcement & Conflicts of Interest: Evidence
available suggests that WIPO’s approach to enforcement is unbalanced,
lacking a development and public interest orientation. The limited
information available on certain WIPO’s enforcement activities, suggests
that its activities are aimed at protecting corporate interests rather than
ensuring a balanced debate that addresses the development dimension
(including flexibilities available, developmental implications of excessive
or inappropriate enforcement standards, safeguards against abusive
enforcement practices), protects public interests and takes into account
the socio-economic realities of beneficiary countries.

The recently released external assessment of WIPO’s technical assistance
also notes the lack of activities in WIPO that ensures efforts to address
counterfeiting and piracy are aligned with national needs and conditions.
The Review also found that certain WIPO’s tools on national IP strategy
placed over emphasis on IP enforcement with questions that would lead
beneficiary countries to think that its enforcement provisions were
inadequate.

The unbalanced approach to IP enforcement is further reinforced by WIPO’s
continuous partnership with entities whose interests’ lies in ever-stronger
IP enforcement. For instance the Global Congress Combating Counterfeiting
and Piracy is organized by WIPO in partnership with intergovernmental
organizations such as Interpol, the World Customs Organization, the World
Intellectual Property Organization as well as industry related stakeholders
i.e. International Trademark Association (INTA) and Business Action to Stop
Counterfeiting and Piracy (BASCAP).

We are of the view that WIPO’s partnership with such industry related
stakeholders hampers its ability to take a balanced approach to IP
enforcement, and undermines Development Agenda particularly implementation
of Recommendation 45 of Development Agenda. Further such one-sided pro
business partnership raises issues of conflict of interests. WIPO being an
intergovernmental and a specialized agency of the UN must take immediate
measures to ensure that all its activities are evidence based, free of
conflicts of interests and undue influence of the industry.

3. Public Health and Safety: The link between IP enforcement and public
health and safety has been promoted with the aim of frightening people into
accepting inappropriate standards of IP enforcement agenda. In reality, the
link between IP enforcement and public health and safety is questionable
and tenuous at best. In fact an IP enforcement framework will not deliver
effective protection of public health as IP rights are not granted on the
basis of the quality and safety of the product. Instead inappropriate
standards of IP enforcement are likely to hinder public health particularly
access to medicines.

This has been amply demonstrated by the seizures of quality generic
medicines at various European ports as a result of inappropriate standards
of IP enforcement. In the East African region several anti-counterfeiting
bills have been enacted or are in the process of being enacted. And while
the proclaimed rationale for such legislation is to protect the public from
unsafe products, these bills are in actual fact only about protecting the
rights of IP holders to the detriment of access to affordable generic
pharmaceuticals. Most of these bills define “Counterfeit” products as being
substantially similar or identical to IP protected products, which
effectively makes every generic pharmaceutical a counterfeit. In Kenya,
enactment of the Anti-Counterfeit Act 2008 has been challenged by people
living with HIV/AIDS on the grounds that enforcement and application of the
Act will deny them access to affordable essential medicines and thus deny
their Right to Life.

Further we stress that addressing the issue of substandard, poor quality
and unsafe medicines (also often labeled as “counterfeit medicines”) is not
within the mandate of WIPO but a responsibility of the World Health
Organization. Moreover dealing with the problem of “counterfeit medicines”
requires a focus not on IP enforcement but on building regulatory capacity
and ensuring access to affordable medicines.

Following from the above-mentioned concerns, we demand that:

·      WIPO urgently make publicly available all information (e.g.
participants and speakers’ list, presentations, list of documents
distributed, outcome of the meetings), with regard to WIPO’s activities in
the area of IP enforcement. Where information is protected due to its
confidential nature, this should be mentioned explicitly.

·      WIPO review its partnership with industry related stakeholders and
take measures to ensure that its enforcement activities are evidence based,
objective, free conflicts of interests and undue influence of the industry
related stakeholders.

·      WIPO ensures that all its enforcement activities take a balanced
approach, do not undermine existing flexibilities; comprehensively
addresses development and public interests considerations and takes into
account the socio economic realities of countries.

·      WIPO ceases to push for IP enforcement on the grounds that it
protects public health and safety.

Signatories


[1] <#_ftnref1>  For an overview of anti-counterfeiting initiatives see
Susan Sell (2008), “The Global IP Upward Ratchet, Anti-counterfeiting and
piracy enforcement efforts: The State of Play” available at
http://www.iqsensato.org/wp-content/uploads/Sell_IP_Enforcement_State_of_Play-OPs_1_June_2008.pdf.See
also Ermias Tekeste Biadleng and Viviana Munon Tellez (2008) “The
Changing Structure and Governance of Intellectual Property Enforcement”
Research Paper 15, South Centre, p. 25 available at www.southcentre.org
<http://www.southcentre.org> <http://www.southcentre.org>
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