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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.




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