Globalization, IP and WIPO Guriqbal Singh Jaiya Director, SMEs Division WIPO .

Globalization, IP and WIPO

Guriqbal Singh Jaiya

Director, SMEs Division

WIPO

www.wipo.int/sme

Introduction

Globalization Intellectual Property Role of WIPO

Topics of Discussion Economic Globalization Territoriality of IP Laws Knowledge Economy,

Competitiveness and Productivity

Public Goods Internet Role of WIPO

Role of WIPO Introduction to WIPO Progressive Development and Codification of

International IP Law Globalization of Innovation Knowledge Management, IPRs and

Globalization Human Rights and IPRs Protecting Traditional Knowledge and IPR Law National Cultural Identity, Cultural/Creative

Industries, IPRs and Globalization

What is Globalization Globalization is a process of

interaction and integration among the people, companies, and governments of different nations, a process driven by international trade and investment and aided by information technology. This process has effects on the environment, on culture, on political systems, on economic development and prosperity, and on human physical well-being in societies around the world

Facets of Globalization Economies around the globe are

more interconnected to each other than ever before (International Trade, FDI, Capital Market Flows)

Information and money flow more quickly than ever

Goods and services produced in one part of the world are increasingly available in all parts of the world

Facet of Globalization Contd... International travel and migration

is more frequent International communication is

commonplace (Telegraph, Telephone, Radio, TV, Internet)

UN and other Intergovernmental Organizations (WTO and WIPO)

Businesses, social activists, labor organizers, journalists, academics, and many others work on a global stage

International Trade

Among rich or developed countries the share of international trade in total output (exports plus imports of goods relative to GDP) rose from 27 to 39 percent between 1987 and 1997. For developing countries it rose from 10 to 17 percent

Foreign Direct Investment Overall world FDI flows more than

tripled between 1988 and 1998, from US$192 billion to US$610 billion, and the share of FDI to GDP is generally rising in both developed and developing countries. Developing countries received about a quarter of world FDI inflows in 1988-98 on average, though the share fluctuated quite a bit from year to year. This is now the largest form of private capital inflow to developing countries

Reminders Globalization is not new, though.

For thousands of years, people — and, later, corporations — have been buying from and selling to each other in lands at great distances, such as through the famed Silk Road across Central Asia that connected China and Europe during the Middle Ages

The extent to which different countries participate in globalization is not uniform

Reminders Continued Pace of economic globalization

accelerated in 1980s and 1990s, as governments reduced policy barriers that hampered international trade and investment

Distinguishing this current wave of globalization from earlier ones, author Thomas Friedman has said that today globalization is “farther, faster, cheaper, and deeper.”

Capitalism or the Market Economy

Trade and Globalization

Since 1950, volume of world trade increased by twenty-fold; from $320 billion to $6.8 trillion

Increase in the trade of manufactured goods exceeds the increase in the rate of the production of these goods by three times

As a result, consumers around the world now enjoy a broader selection of products than ever before

Introduction to WIPO UN Specialized Agency Headquarters in Geneva, Switzerland 935 employees from 95 countries Administers 23 International Treaties Global Protection Systems (PCT, Madrid,

Hague) Technical Assistance/Development Agenda Dispute Resolution Services (WIPO Arbitration

and Mediation Center) Decisions by: GA, CC, WIPO Conference

WIPO Contd... An international organization dedicated to

promoting the use and protection of works of the human spirit

Seeks to promote the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization

181 Member States of WIPO (including Israel)

Progressive Development and Codification of International IP Law

Harmonization Standing Committees Committee of Experts (e.g., IPC

Union) Working Groups (e.g., Nice Union) Preparatory Meeting for a Diplomatic

Conference Diplomatic Conferences Joint Recommendations (“Soft Law”)

Israel’s Membership of WIPO’s Treaties/Conventions

Berne Convention Budapest Treaty (Microorganisms) Lisbon Agreement Madrid Agreement (Source) Nice Agreement Paris Convention and PCT Phonograms Convention Rome Convention Strasbourg Agreement (IPC) WIPO Convention

Standing Committees Standing Committee on the Law of Patents (1) WIPO Patent Agenda, (2) PCT Reform,

and (3) Draft Substantive Patent Law Treaty Substantive Patent Law Treaty: 11th Session

(23-05-2005 to 27-05-2005) Focus on issues of direct relevance to the

grant of patents, in particular, the definition of prior art, novelty, inventive step/non-obviousness, industrial applicability/utility, the drafting and interpretation of claims and the requirement of sufficient disclosure of the invention

Other Committees of WIPO Standing Committee on the Law of Trademarks, Industrial

Designs and Geographical Indications

(14th Session; 25-04-2005 to 26-04-2005)

Standing Committee on Copyright and Related Rights (12th session, Nov 2004) Discussions on extension of protection to: non-original databases; audiovisual performers; and broadcasting organizations

Advisory Committee on Enforcement

Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) (7th session; Nov 2004)

Standing Committee on Information Technologies, with two WGs (IT Projects,; Standards and Documentation)

TRIPS Agreement; Introduction (1)

Minimum standards of protection not harmonization Basic principles: national treatment, m.f.n. Coverage: all key IPRs

reference to the incorporated treaty, if any; definition of the subject-matter, if possible, including

exclusions; conditions for protection; term for protection (except for GIs and undisclosed

information); exclusive rights, including exceptions.

Enforcement Dispute settlement Transitional arrangements Review of implementation


"Incorporation" Technique: •To refer to existing

conventions •To ensure coherence •To avoid re-opening

of existing texts•To negotiate the +

elements •To have a short but comprehensive text

Paris Berne

IPIC Rome

Conventions fully incorporated or almost fully incorporatedPlus elementsConventions with very few elements incorporated


Minimum level of protection (subject to transition periods, in particular for LDCs);

Freedom to determine the appropriate method of implementing the Agreement

Incorporated conventions National treatment (Art. 3) Most-favoured nation treatment (MFN)

(Art. 4, 5)

TRIPS Agreement; Enforcement Enforcement procedures shall be available so as to permit

effective action against infringement, including expeditious remedies to prevent further

infringement and remedies that constitute a deterrent to further

infringements Avoid the creation of barriers to legitimate trade and safeguard

against abuse General principles of law: right to be heard, decisions in

writing, opportunity for review, etc. Civil judicial and administrative procedures and remedies:

Injunctions, damages and others Provisional measures Right of information

Border measures for importation of counterfeit trademark or pirated copyright goods

Criminal procedures and penalties for wilful trademark counterfeiting or copyright piracy on a commercial scale

TRIPS Agreement: Registration/Grant

Application of enforcement priciples to prodedures for filing, registration, renewal:

Fair and equitable

Not unnecessarily complicated or costly nor unwarranted delays

Decisions on merits, preferably in writing

Final administrative decisions subject to judicial or quasi-judicial reviews

WTO (TRIPS Agreement) Does not deal with parallel

imports;exhaustion of IPRs Geographical indications Vs

Trademarks Flexibility on patents for plants and

animals; Article 27.3(b): biotechnological inventions – under review since 1999

Patents: Locally produced or imported Agreement between WIPO and WTO

Globalization of Innovation

International exploitation of national technological capabilities

Global technical collaborations Global/international cooperation in

generation of innovations FDI, Transfer of Technology Partnerships (JVs, Subsidiaries,

Strategic Alliances, PPP, University-Industry-Business, etc)

Licensing, Franchising, Merchandising

Knowledge Management, IPRs and Globalization

Trade Secrets (are said to be the “IPRs of the new millennium and can no longer be treated as a stepchild”

Branding Outsourcing (value chain or networks) Optimization versus Adaptation MNC-SME Linkages; clusters Regional or local systems of innovation Regional Trading Blocks

Knowledge Management, IPRs and Globalization Contd...

Unitary patent Grants by Regional Patent Offices

First-to-file Provisional Applications One-year Grace Period English Language for Examination and

Enforcement Single Electronic Prior Art Database World Patent Court


Trilateral Initiatives between Europe, Japan and the U.S., based on the “Kyoto Action Plan”

USPTO's initiative to convene an "exploratory" meeting on 3-4 February 2005 "to discuss the current state of substantive patent law harmonization and possible approaches for moving harmonization forward" as a result of "talks on substantive patent law harmonization at the WIPO (having) been delayed until May 2005 as a result of disagreement among WIPO member states over the content of a proposed harmonization treaty and the best way to proceed with discussions"


Based on his experience of the European harmonization process, Dr. Van Benthem, a former President of the European Patent Office (EPO), has suggested that harmonization should be effected in a three-step process as follows:

1) classification, databases, searches,

2) procedural aspects, and

3) substantive matters

Only after enough momentum has been gained in one-stage should the next stage be entered


An expanded PCT could be a vehicle for a global patent

A regional patent system such as the EPC may be a ready mechanism for a global patent, inasmuch as any country can join the EPC

Gerald Mossinghoff believes that, with TRIPS in place, a global, universal or world patent will see the light of day “sooner rather than later,” because our knowledge-based era requires full harmonization


Integrated approach to use of IPRs, a seamless web

Legal protection of innovation of any kind, especially in high-tech fields, requires the use of more than one IP category, i.e. dual or multiple protection


Especially for high-tech products, trademarks and copyrights can supplement patents, trade secrets and mask works for the products’ technological content. One IP category, often patents, may be the center of gravity and more important than others. Other IPR categories are then supplementary but very valuable to cover additional subject matter, strengthen exclusivity, invoke additional remedies in litigation, standup if a primary IPR becomes invalid and thus provide synergy and optimize legal protection


Patents are but the tips of icebergs in an ocean of trade secrets. Over 90% of all new technology is covered by trade secrets and over 80% of all license and technology transfer agreements cover proprietary know-how, i.e. trade secrets, or constitute hybrid agreements relating to patents and trade secrets. Bob Sherwood, an international IP consultant, calls trade secrets the “work horse of technology transfer”


Trade secrets are the first line defense: they come before patents, go with patents, and follow patents. As a practical matter, licenses under patents without access to associated or collateral know-how are often not enough for commercial use of the patented technology, because patents rarely disclose the ultimate scaled-up commercial embodiments. Hence, data and know-how are immensely important.


In fact, patents and trade secrets are inextricably intertwined, because the bulk of R&D data and results or associated, collateral know-how for any commercially important innovation cannot and need not be included in a patent application but deserves, and requires, protection which trade secrets can provide

Human Rights and IPRs Panel discussion on Intellectual Property and

Human, Geneva, November 9, 1998 http://www.wipo.int/tk/en/activities/1998/

humanrights/papers/index.html Masters Program on Human Rights and

Intellectual Property Lund Universithttp://www.lu.se/o.o.i.s/1474y The program offers courses leading to

advanced knowledge of public international law, international organization, human rights, intellectual property, refugee law, humanitarian law and several related subjects

Human Rights and IPRs

Moral Rights:

Attribution/Paternity

Integrity Right to Health Right to Food Right to Education Rights of Indigenous Peoples Freedom of Speech

Human Rights and IPRs How to define the interface of human rights

and IPRs? Domestic relations under constitutional law International relations under international law Specific Areas:

The Issue of Labour standards Plant Genetic Resources; Protection of

Traditional Knowledge (TK); Seeds; landraces Traditional Medicines Traditional Pesticides Access to Essential Drugs (e.g., HIV/AIDS)

Protecting Traditional Knowledge and IPR Law

Ethical Challenge: Restoring Equity How to link IPRs to Benefit Sharing

and Protection of Biodiversity? How to balance appropriations with

preexisting investment found in public domain?

How to bring about de-fragmentation and an international system?

TK and Reforms of Patent System

Efforts to bring about benefit-sharing and access under CBD: Establishment of electronic data on TK:

protection of prior art (WIPO) Disclosure of source; Prior informed consent (PIC) Farmers’ privileges (genetic engineering)

National Cultural Identity, Cultural/Creative Industries, IPRs and

Globalization

Article 27 of the UDHR recognizes the importance of preserving culture: “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and share in scientific advancement and its benefits”

The right to culture gains a new meaning as new rules emerge for intellectual property in response to technological advances

National Cultural Identity, Cultural/Creative Industries, IPRs and

Globalization Copyright/Creative industries as those

industries which have their origin in individual creativity, skill and talent and which have a potential for wealth and job creation through the generation and exploitation of intellectual property

Include advertising, architecture, the art and antiques market, crafts, design, designer fashion, film and video, interactive leisure software, music, the performing arts, publishing, software and computer games, television and radio

National Cultural Identity, Cultural/Creative Industries, IPRs

and Globalization

In today's knowledge economy, core 'cultural content' such as writing, film production and music, which has always contributed to society, is recognized as making a significant and growing contribution to the economy

In the 1950's, the world's biggest companies were industrial manufacturers and raw material suppliers. Now, broadcasters, publishers and entertainers head the list


and Globalization

Worldwide, the creative industries are growing faster than other economic sectors, reflecting the changes in today's wealth-generating economies

Creative industries are a growing source of direct exports. They also contribute to the competitiveness of other industries, as a component of many modern commercial and consumer products


and Globalization

It is hard to estimate the potential of creative industries because there are no standard definitions. Estimates put the world market at over $3.04 trillion. By 2020 this sector is estimated to be worth $6.1 trillion

Guide on Surveying the Economic Contribution of the Copyright-Based Industries: http://www.wipo.int/copyright/en/publications/pdf/copyright_pub_893.pdf


and Globalization

Parallel importing of copyright goods

E.g., Impact of Parallel Imports on New Zealand's Creative Industries (October 2004): http://www.med.govt.nz/buslt/int_prop/creative/negc/negc.pdf


and Globalization

Broadcasting organizations

– Growing digital signal piracy problem

– Consolidated text of draft treaty for discussion in standing committee

Issues:

• What transmissions should be protected, and what rights granted?

• Who should be protected (traditional broadcasters, cable programs, webcasters)?


and Globalization

Mass Media: Music, Multimedia, Films, TV, Internet; P2P file sharing (Napster)

Fair use exceptions in the digital environment (DRM/TPM)

Ownership of IP in the digital environment; derivative works versus joint works

Digitization and Global distribution networks

Collaboration and the free exchange of knowledge, ideas and creative products (Open Source, open access, open archives, preprints)


and Globalization New digital rights management (DRM) tools New business models for exploitation of digital

copyright DRM standards initiatives (e.g., MPEG-21) Open source software discussions World Summit on the Information Society ISP liability and notice and takedown provisions Applicable law for international infringements Copyright ‘formalities’ (registration, recordation) Ownership and use of multimedia products Collective management of copyright

Globalization, IP and WIPO

THANK YOUGURIQBAL SINGH JAIYA

[email protected]

www.wipo.int/sme

Globalization, IP and WIPO Guriqbal Singh Jaiya Director, SMEs Division WIPO .

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