The letter below was sent to Mr. Francis Gurry on 30th November 2011. The contents were also communicated during the Advisory Committee on Enforcement that met on 30th November to 1st December 2011.

Regards,
Sangeeta Shashikant
Third World Network
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CIVIL SOCIETY LETTER

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 (made 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] However such an approach disregards the development dimension, undermines public interests and compromises fundamental human rights such freedom of expression over the internet.[2]

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 WIPO¹s 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 WIPO¹s 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 several of the meetings mentioned in the Annex are not even listed on WIPO¹s 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 WIPO¹s approach to enforcement is unbalanced, lacking a development and public interest orientation. The limited information  available on certain WIPO¹s 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.[3]

The recently released External Review of WIPO¹s 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 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, 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 WIPO¹s 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 extensively 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 affordable 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 bills 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 speakers¹ list, presentations, list of documents distributed, outcome of the meetings), with regard to WIPO¹s 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. Act UP Paris
2. AGIHAS (People Living with HIV Support group), Latvia
3. AIDS ACCESS Foundation
4. All India Drug Action Network, India
5. All Nepal Peasants’ Federation, Nepal
6. Alianza Social Continental Capitulo Perú
7. Berne Declaration, Switzerland
8. Centad, India
9. Center for Health, Human Rights and Development, Uganda
10. Center for Technology and Society at FGV Law School, Brazil
11. CNCD-11.11.11 (Centre National de Coopération au Développement), Belgium
12. Communication is Your Right
13. Drug Study Group, Thailand
14. Drug System Monitoring and Development Program, Thailand
15. Diverse Women for Diversity, India
16. European AIDS Treatment Group (EATG)
17. Foundation for AIDS Rights, Thailand
18. Foundation for Consumers, Thailand
19. FTA Watch
20. Health Action International Africa
21. Health Consumers Protection Program, Thailand
22. Health and Development Foundation, Thailand
23. Health GAP, USA
24. Indonesia AIDS Coalition, Indonesia
25. Initiative for Health & Equity in Society, India
26. Internet Governance of Pakistan
27. IP Justice, USA
28. La Quadrature du Net (France / Europe)
29. LES ANGES DU CIEL
30. Marcha Mundial de las Mujeres, Perú
31. National Institute of Intellectual Property organisation (NIPO), India
32. Organization Butere focused women in development (BUFOWODE), Kenya
33. Oxfam
34. Peoples Health Movement
35. Red Mexicana de Accion frente al Libre Comercio (RMALC), Mexico
36. Research Foundation for Science Technology & Ecology, India
37. Rural Pharmacists Foundation, Thailand
38. Society for Knowledge Commons, India
39. Thai Holistic Health Foundation, Thailand
40. Thai NGO Coalition on AIDS, Thailand
41. Thai Network of People living with HIV/AIDS (TNP+), Thailand
42. Third World Network
43. Urdu Internet Society, Pakistan
44. Vietnamese Network of PLHIV (VNP+)
45. Vrijschrift, Netherlands

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NOTES:

[1] 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://digitalcommons.wcl.american.edu/research/15/ See also Ermias Tekeste Biadleng and Viviana Munoz Tellez (2008) “The Changing Structure and Governance of Intellectual Property Enforcement” Research Paper 15, South Centre, available at www.southcentre.org (http://www.southcentre.org)

[2] See the joint declaration on Freedom of Expression and the Internet (http://www.law-democracy.org/wp-content/uploads/2010/07/11.06.Joint-Declaration.Internet.pdf)  issued by the UN Special Rapporteur on Freedom of Opinion  and Expression, the Organization for Security and Co-operation (OSCE) Representative on Freedom of the Media, and the Organization of American States (OAS) Special Rapporteur on Freedom of Expression, and the African Commission on Human and People¹s Rights (ACHPR) Special Rapporteur on  Freedom of Expression and Access to Information.

[3] See for example http://craphound.com/PROGRAMManilaEdited10212011-FINAL.pdf