Fordham Focus 2: IP and international instruments

Michele Woods

Following the enjoyable, if unbloggable, IP Judges' panel the next Fordham plenary session turned its attention to IP and international instruments. Michele Woods opened with a round-up of progress with the WIPO treaty on copyright limitations in favour of the visually impaired, adding a cautionary note about how many hours can be consumed in resolving each bracketed set of alternative texts. A forthcoming conference in Marrakesh, Morocco, is coming up soon, at which the main outstanding issues can be thrashed out over 10 working days. One problem is that some countries are very keen on the Berne Union three-step test and want it mentioned, while others don't want anything to do with it.

Other items on the agenda include a treaty to protect broadcasting organisations: there is a single text, but a text in which no issue is actually resolved. Meanwhile the WIPO awaits a recommendation to its General Assembly. Treaties on libraries are also on the cards, though it is not clear which way discussions will do since some countries are ready for negotiations while others are not.

Pedro Velasco Martins

DG Trade's Pedro Velasco Martins then humorously alluded to his post-traumatic stress disorder as a result of having committed several years of his life to promoting ACTA. He spoke on the importance of exporting strong IP standards, whether through multilateral or bilateral arrangements. The need for good IP protection also has to be "exported" to the European Parliament and to consumers at large, since there is much hostility to IP, a good deal of it being based on ignorance or  misunderstanding of what IP does and what it can do to help developing countries, small businesses, rural communities and the like. The EU is also concerned not to see erosion of IP as a result of international treaties that are not IP-based, such as those relating to health and the environment.

Free trade agreements which have been, or are being, concluded with countries such as Canada, Singapore and the countries of the caucasus all contain an IP chapter. It has been a struggle to negotiate IP issues with India; meanwhile, negotiations will soon be opened with the US and Japan, so there's a lot going on at the moment.

Stan McCoy

Next up was Stanford McCoy, who spoke of the need for international standards from the perspective of the office of the US Trade Representative. Stan spoke of his office's activities with regard to issues as distant as Canadian copyright and corruption in the Ukrainian collecting society sector. In this regard, the US is a keen supporter of the Berne three-step test, particularly within the scope of the Trans-Pacific Partnership. (TPP) -- not to be confused with the Trans-Atlantic Trade and Investment Partnership (TIPP), which is to be negotiated with the EU.  Market access is another area of concern; here the US has made advances in terms of gaining access to the Chinese market for US-made films.

In answer to a question from Chairman Hugh, Stan said the biggest challenge facing the USTR was not a matter of getting good laws on to the statute books, but of getting them used once they were there. The case of Ukraine, where use of unlawful software even in official circles is endemic, was cited.

Justin Hughes

The session was then turned over to the panel.  Justin Hughes, when asked what he thought was the likely outcome of the Marrakesh negotiations, said he expected success: a system for assisting the visually impaired, balanced with an adequate level of protection for copyright owners. He later added how important it was to have input from beyond the IP sector; thus, for example, expertise with regard to visual disability was needed if a treaty on copyright leniencies in favour of the visually impaired were to be effective.

Shira Perlmutter

Jukka Liedes

Jukka Liedes considered that there was an enormous amount of lack of confidence in the air, but agreed with Justin that success in  negotiating a treaty in Marrakesh was likely. Shira Perlmutter expressed her pleasure that progress has been made on a multilateral level, and indicated that the increased volume of bilateral work towards better IP protection reflected this progress: there was always the prospect that widely-accepted standards of bilateral treaties would themselves form the basis of subsequent multilateral agreements.