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April 22, 2009
By
William New,
Intellectual Property Watch
Protection and enforcement of
intellectual property rights is emerging as the dominant
priority in international trade policy for the European Union
and United States, based on communications from trade officials
and others. Stimulating innovation also has a significant role.
The prevailing perception is that their intellectual property
rights represent a significant – and sometimes the only -
competitive advantage they have in negotiations with trading
partners. These views were parlayed to the annual Fordham
University Intellectual Property Law and Policy conference, held
14-15 April in Cambridge, England.
The United States, with new leadership, appears to be continuing
the strong enforcement focus of the previous administration. But
some key IP officials have yet to be named and some questions
remain on IP policy.
The European Union is due to change leadership at year’s end but
has crafted a consistently strong approach to IP enforcement.
“IP has definitely become a top priority of the EU trade policy
[agenda],” one speaker said last week. “It’s a story that will
not go away. It is with some countries our only competitive
advantage.”
Both governments are focussed on raising protection levels in
other countries for their industries’ IP rights through
bilateral and regional trade agreements. They also are actively
working to accomplish this through as many other channels as
possible. These include fighting counterfeit products through
the World Health Organization and World Customs Organization,
and also through the Anti-Counterfeiting Trade Agreement (ACTA).
But some venues, like the World Trade Organization and the World
Intellectual Property Organization, are seen as politically
blocked from discussing enforcement substantively by some of
their membership who fear any policymaking will not be balanced
for developing countries.
Governments have gone on the defensive with regard to their
efforts to protect their domestic industries’ rights through
trade deals. “We understand the frustration of industry,” said
one official. “But Rome wasn’t built in a day.”
Meanwhile, levels of enforcement above that obtained in the
multilateral WTO Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) continue to be pursued,
including in bilateral investment agreements, through a steady
stream of domestic legislation and through bilateral trade
talks.
New US Trade Representative Ron Kirk signalled early the
recognition that IP is a key competitive advantage, an official
said, adding, “IP-intensive industries need strong commitments
from our trading partners and we will work on that.” Kirk has
flagged an emphasis on an international infrastructure of
creativity and innovation, the official said.
Already, the new administration has engaged in IP issues at the
WTO TRIPS Council, and bilaterally with Russia, China, the
European Union, Japan, Saudi Arabia, as well as Canada and
Mexico and through trade and investment agreements. The US
Patent and Trademark Office and other US agencies also are
continuing their intensive capacity-building efforts in IP
enforcement. To date, they have been involved in the training of
as many as 80,000 people, an official said.
The Obama administration hopes to be more open to a wider range
of stakeholders such as nongovernmental organisations, an
official said.
The EU has a number of initiatives as well, such as the launch
in recent weeks of an “observatory” for collecting, analysing
and presenting data on counterfeiting and piracy, in part to
help bring about a “change in mindset” among EU policymakers on
these issues, an official said.
The EU also has a strong interest in protecting its geographical
indications, products whose names derive from places and
particular characteristics.
EU IP “Tsar”?
The European Commission is under pressure from industry to
consider creating a position of “IP tsar” like the United States
has done and is about to fill. But the Commission appears to see
little need at this time, choosing instead to focus on better
communication between existing layers rather than add another.
The Commission also is showing signs of sympathy to the
pharmaceutical industry objection to its preliminary study that
found drug companies using patents to suppress competition from
lower-priced generics. The Commission is consulting before the
final version of the study comes out.
There also has been some talk of reopening the EU Copyright
Directive, for instance to introduce the “fair use” doctrine as
in the United States. The copyright industry seems generally
opposed to reopening of the EU directive, and may see the
current fight over proposed extension of copyright protection
for producers and performers as indicative of the struggle that
would ensue if opened.
Commission officials may call for more flexibility to work
outside the legislative process involving the increasing number
of member countries to find solutions to IP concerns. It was
estimated that it takes about 6 years for legislation to move
from inception to implementation.
Some in the Commission hold that stakeholder dialogue, while
encouraged, will not replace legislation in all cases, and that
transparency calls for policy to be made in the open rather than
in a closed room with stakeholders. |
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