WIPO
Enforcement
of WIPO Agreements
The idea of intellectual property protection on an international
scale began in the 1880s with the Paris and Berne Conventions. These
first conventions became the basis for the current World Intellectual
Property Organization, or WIPO. Since the 1880s, the problem of enforcing
intellectual property rights has been a topic of discussion for WIPO
and many other organizations. Not until the 1980s, however, did enforcement
begin to receive greater attention. A series of conventions and forums
held from the 80s to the present have lead to international enforcement
policies that signatories and members of WIPO, the World Trade Organization
(WTO), and many other governmental and non-governmental organizations
abide by. The past few years have witnessed forums that further clarify
the basic enforcement procedures of the past. Some of the recent events
have been the establishment of a new Advisory Committee on Enforcement
of Industrial Property Rights or ACE/IP, the Advisory Committee on Management
and Enforcement of Copyright and Related Rights in Global Information
Networks or ACMEC, the Agreement on Trade-Related Aspects of Intellectual
Property Rights or TRIPS, the WIPO Workshop on the Enforcement of Intellectual
Property Rights for Judges, and the WIPO Seminar on Enforcement of Intellectual
Property Rights for Police and Customs Officials and the WIPO Arbitration
& Mediation Center, which assists nations in settling disputes.
The TRIPS agreement, which came into effect in January 1995, is the
most basic and important of recent enforcement policies. In fact, WIPO
acknowledges it as "to date the most comprehensive multilateral
agreement on intellectual property."1 The agreement came about
as a uniting of WIPO and the WTO in order to 1) protect property rights
and 2) guard against trade barriers and other abuses of the intellectual
property rights system. The agreement outlines the basic policies and
general stance that WIPO takes on intellectual property rights enforcement.
In short, it outlines the suggested ways that nations deal with rights
violations. It requires that the enforcement system punish rights violators,
find compensation for stolen or pirated property, and deter future infringements.
It requires that enforcement procedures not be too complicated or costly,
and that there be no unnecessary delays. It also grants the persons/
companies involved in a dispute the right to case reviews and appeals
to court decisions. More specific policies regulate the enforcement
of particular types of intellectual property such as patents, copyright,
trademarks, industrial designs, etc. The agreement also deals with border
control policies (in the case of illegal importation of pirated goods.)
Since the requirements set by the TRIPS agreement did not exist in many
nation's current judicial systems, a follow-up resolution was passed
by the WIPO General Assembly that requires an International Bureau to
aid countries in implementing TRIPS' policies. Under the TRIPS agreement,
countries were granted transition periods for enacting policies. The
length of the periods was determined by levels of development- 'developed'
countries were allowed 1 year to convert their systems, 'developing'
countries were given 5 years, and the 'least developed' nations were
allowed 11 years. The International Bureau is now at work providing
legal assistance to those 'least developed' countries so they may meet
their 2006 deadline.
The TRIPS agreement is more or less the standard for WIPO intellectual
property rights enforcement policies in general. According to these
policies, the patent owner is responsible for reporting all potential
violations to his government, governments are required to enforce rights
through a judicial process and press for compensation of any losses
to the property owner, governments are required to deter potential infringement
through the enforcement of rights, and governments must abide by certain
procedural regulations in the judicial system.
So it seems that all the bases have been covered, and perhaps that is
what the framers of the TRIPS agreement and other forums believed. There
are, however, many inherent problems with the current system that keep
it from being what it pretends to be: the guarantee that intellectual
property rights will be enforced.
The first problem with the current enforcement policies that are represented
by the TRIPS agreement is that there is simply not enough structure
to the policies set forth. The TRIPS agreement asks for and grants power
to nations to have effective enforcement systems yet does not ensure
participating countries do so. One major example of this is the lack
of a requirement for a separate judicial system for dealing with intellectual
property violations. Without specialists, intellectual property matters
will not receive the attention necessary for fair dispute settlements.
Even if every nation had a specialized judicial system for intellectual
property cases, it would not matter as long as that judicial system
was a biased, unjust system. It is a hard fact that many nations do
not have the checks and balances in their judicial systems that actually
allow for justice. Individual freedoms simply are not upheld in some
countries. Therefore, an individual or entity might have as many intellectual
property rights as they like, but those rights are meaningless unless
they have the right to a fair judicial system as well. As it stands,
the sovereignty of nations comes before the rights of individuals, and
this simply does not work with an international property rights system.
Despite all the other problems, there is one issue that independently
proves the limits to current enforcement policies. That issue is the
fact that with the current system, the only countries that follow the
rules set forth by WIPO are those that have agreed (signed) to those
policies. Since agreement is voluntary, those countries that for whatever
reason chose not to be a part of the intellectual property rights system
have no obligation to punish those who violate such rights. Therefore,
it does not matter that an individual can obtain an international patent
or copyright because that mark has no power to keep the intellectual
property safe from non-member state or signatory nations. Delegates
must decide whether or not the establishment of an international patent
would help to resolve these patent enforcement problems. Certainly all
these problems beg for a solution that is better than the current enforcement
system.
1 http://www.wto.org/english/tratop_e/trips_e/intel2b_e.htm#enforcement
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