The WIPO Digital Agenda
507. WIPO is, through its Member States, the Organization responsible for the development of a framework for the promotion and protection of intellectual property at the international level. In this era of rapid technological development, which relies heavily on the intellectual property system as a means of safeguarding the benefits resulting from those advancements, the mission of the Organization has become all the more important.
508. In September 1999, at WIPO's first International Conference on Electronic Commerce and Intellectual Property, the Director General of WIPO highlighted the Organization's focus on developments in information technology and the protection of intellectual property on the Internet by his announcement of the WIPO Digital Agenda, a plan of action for the Organization that was subsequently adopted by its Member States at their General Assembly held during the same month. The Agenda serves as a high-level overview of the areas in which the Organization anticipates it might be called upon to take action in the digital arena over the next several years. The Agenda's ten points, as they were announced by the Director General in September 1999, are set forth below.
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1. Broaden the participation of developing countries through the use of WIPOnet and other means
for
2. Entry into force of the WCT and the WPPT before December 2001. 3. Promote adjustment of the international legislative framework to facilitate e-commerce
through
4. Implement the recommendations of the Report of the WIPO Internet Domain Name Process and pursue the achievement of compatibility between identifiers in the real and virtual worlds through the establishment of rules for mutual respect and the elimination of contradictions between the domain name system and intellectual property rights. 5. Develop appropriate principles with the aim of establishing, at the appropriate time at the international level, rules for determining the circumstances of intellectual property liability of Online Service Providers (OSPs) which are compatible and workable within a framework of general liability rules for OSPs. 6. Promote adjustment of the institutional framework for facilitating the exploitation of
intellectual property in the public interest in a global economy and on a global medium through
administrative coordination and, where desired by users, the implementation of practical systems in
respect of
7. Introduce online procedures for the filing and administration of international applications for the PCT, the Madrid System and the Hague System at the earliest possible date. 8. Study and, where appropriate, respond in a timely and effective manner to the need for
practical measures designed to improve the management of cultural and other digital assets at the
international level by, for example, investigating the desirability and efficacy of
9. Study any other emerging intellectual property issues related to electronic commerce and, where appropriate, develop norms in relation to such issues. 10. Coordinate with other international organizations in the formulation of appropriate
international positions on horizontal issues affecting IP, in particular
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509. Three years having passed since the adoption of the Digital Agenda, it is timely to provide a report on the status of activities at WIPO in relation to those topics where significant developments have occurred. Most of the topics covered in the following paragraphs are elaborated upon in greater detail in other portions of this paper.
Broaden the participation of developing countries through the use of WIPOnet and other means for access to IP information, participation in global policy formulation and opportunities to use their IP assets in e-commerce.
510. The goal of WIPOnet is to interconnect 320 intellectual property offices located in 178 countries. The implementation of the network, which will be based largely on existing worldwide communication infrastructures, is expected to introduce greater efficiencies into the operations of the intellectual property system through increased use of information technology. Specifically with a view to assisting developing countries, WIPOnet will equip some 154 intellectual property offices that do not have Internet access with basic connectivity and core services.
511. Deployment of WIPOnet started in January 2001 with the establishment at WIPO's Headquarters in Geneva of a central facility, the WIPOnet center. In parallel, the deployment of the WIPOnet kit (basic computer hardware, software, training and reliable Internet connectivity) started and has been delivered to some 48 offices of the 154 identified. This kit will enable those intellectual property offices which are not yet online to be given access to the Internet and to the WIPOnet center, as well as to the services offered by the latter.
Entry into force of the WCT and the WPPT before December 2001.
512. The WCT entered into force on March 6, 2002 and the WPPT on May 20, 2002, each after having been acceded to or ratified by 30 countries. At the time of publication of this paper, several additional countries have acceded or ratified the treaties with the total number of accessions or ratifications now standing at 38 for the WCT and 38 for the WPPT. It is notable that the countries that have adhered to the treaties include both developing and developed countries. [589] The entry into force of the treaties is considered a major historical achievement in terms of the international copyright system. With a view to the future, WIPO is committed to working towards the broadest possible adherence to the treaties around the world, so that the norms which they embody may become universally accepted, as well as to their proper implementation in national legislation.
Promote adjustment of the international legislative framework to facilitate e-commerce through the extension of the principles of the WCT and WPPT to audiovisual works, the adaptation of broadcasters' rights to the digital era and progress towards a possible international instrument on the protection of databases.
513. A WIPO Diplomatic Conference on the protection of audiovisual performances was held in December 2000. While an understanding was reached on most substantive issues, the question of international recognition of transfers of rights was not resolved, which prevented the parties from adopting a treaty on the subject matter. The issue, however, remains on WIPO's agenda and efforts are being made to bridge the remaining differences and to find possible ways for an evolution in the negotiations.
514. Concerning the rights of broadcasting organizations, discussions are ongoing at WIPO with a view to a possible international instrument on a broad range of issues, including the object, nature and scope of possible protection, as well as its beneficiaries.
515. With regard to the protection of non-original databases, the latest developments include the commissioning and receipt by WIPO of a number of studies on the economic impact of international database protection on developing countries and countries in transition, as well as on Latin American and Caribbean countries. It is expected that discussions at WIPO on the principle of protecting non-original databases, as well as on the form that such protection might take, will need to continue for some time before an agreement can be reached.
Implement the recommendations of the Report of the WIPO Internet Domain Name Process and pursue the achievement of compatibility between identifiers in the real and virtual worlds through the establishment of rules for mutual respect and the elimination of contradictions between the domain name system and intellectual property rights.
516. The principal recommendations of the Report of the first WIPO Internet Domain Name Process were implemented through the adoption by the Internet Corporation for Assigned Names and Numbers (ICANN) of the Uniform Domain Name Dispute Resolution Policy (UDRP) on August 26, 1999. This procedure, which entered into operation in December 1999, provides holders of trademark rights with an administrative mechanism for the efficient resolution of disputes arising out of the bad faith registration and use by third parties of Internet domain names corresponding to those trademark rights. The UDRP now applies to disputes in the gTLDs .com, .net, and .org, the new gTLDs . aero, . biz, . coop, . info, . museum, . name, and . pro, and those ccTLDs that have adopted the Policy on a voluntary basis.
517. Since its entry into force, the UDRP has become widely regarded as the primary means of combating trademark cybersquatting in the gTLDs, with approximately 8,000 cases filed under the procedure. Of those, more than 4,500 have been filed with the WIPO Arbitration and Mediation Center, the procedure's leading dispute resolution service provider.
518. While the focus of the UDRP is to protect trademarks against their abusive registration as domain names, it became clear, already at the time the first WIPO Internet Domain Name Process was conducted in 1998, that identifiers other than trademarks also were the subject of abuse in the DNS. In order to address these outstanding problems, the WIPO Member States requested the Organization to conduct the Second WIPO Internet Domain Name Process, which was launched in the summer of 2000 and covered issues arising from the bad faith, abusive, misleading or unfair registration or use, as domain names, of:
- international nonproprietary names (INNs) for pharmaceutical substances;
- names of international intergovernmental organizations (IGOs);
- personal names;
- geographical indications, indications of source and geographical terms; and
- trade names.
519. The final Report of the Second WIPO Process, titled "The Recognition of Rights and the Use of Names in the Internet Domain Name System," was published on September 3, 2001, and submitted to WIPO's Member States and the Internet community. A decision was taken by the WIPO Member States at their Assemblies in September 2001 to subject the Report to a comprehensive analysis by the WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications. After holding two special sessions for this purpose, the Standing Committee formulated recommendations that were considered by the WIPO General Assembly at its meeting from September 23 to October 1, 2002.
520. The WIPO General Assembly reached decisions on the issues addressed in the Second WIPO Internet Domain Name Process, on the basis of each of the recommendations of the SCT, as follows:
- it adopted the recommendation with respect to INNs, that no particular form of protection of INNs would be recommended in the DNS at this time, but that WIPO, together with the World Health Organization (WHO), would continue to monitor the situation and, where necessary, bring any important developments in this area to the notice of Member States;
- it adopted the recommendation with respect to trade names, that Member States should keep this issue under review and raise it for further discussion if the situation so required;
- it adopted the recommendation with respect to personal names, that no action is recommended in this area;
- it adopted the recommendation with respect to geographical indications, that this issue be reverted to the regular session of the SCT to decide how to address the issue of the protection of geographical indications in the DNS;
- it adopted the recommendation with respect to the names and acronyms of IGOs, that the UDRP should be amended to allow complaints to be filed by international organizations under certain circumstances, while taking into account the privileges and immunities of these intergovernmental organizations under international law. In addition, the General Assembly instructed the Secretariat to transmit this recommendation to the Internet Corporation for Assigned Names and Numbers (ICANN). The Delegation of the United States of America dissociated itself from this decision; and
- concerning the recommendation with respect to country names (the SCT had noted that most Member State Delegations favored some form of protection for country names against registration or use by persons unconnected with the constitutional authorities of the country in question), it noted that all Delegations supported the recommendation, with the exception of Australia, Canada and the United States of America. It noted, however, that a number of issues regarding the modalities of protection of country names in the DNS warranted further discussion, [590] and decided that these discussions should be continued in the SCT with a view to reaching a final position.
521. At the request of its Member States, WIPO also established the WIPO ccTLD Program, which aims to enhance the protection of intellectual property in the ccTLDs through cooperation with their administrators. As part of this Program, WIPO has provided advice and assistance to administrators of ccTLDs on the management of intellectual property issues in their domains through: (1) the publication of the WIPO ccTLD Best Practices for the Prevention and Resolution of Intellectual Property Disputes (a voluntary set of minimum standards for intellectual property protection in the ccTLDs, available at http://ecommerce.wipo.int/domains/cctlds/bestpractices/index.html), (2) counseling ccTLD administrators who seek intellectual property advice from WIPO, and (3) advising ccTLD administrators on the conduct of national consultations that draw inspiration from the first and Second WIPO Internet Domain Name Processes.
522. As a result of the WIPO ccTLD Program, alternative dispute resolution (the UDRP in particular) has increasingly gained ground in the ccTLDs. To date, 28 administrators of ccTLDs have retained the WIPO Arbitration and Mediation Center as dispute resolution service provider on the basis of the UDRP or a variation thereof. [591]
Develop appropriate principles with the aim of establishing, at the appropriate time at the international level, rules for determining the circumstances of intellectual property liability of Online Service Providers (OSPs) which are compatible and workable within a framework of general liability rules for OSPs.
523. A Workshop on OSP liability was organized by WIPO on December 9 and 10, 1999, to explore the issues concerned. Particular attention was devoted to the notice and takedown provisions of the United States Digital Millennium Copyright Act, one year after its enactment, as well as to the views from OSPs, telecommunications industries and the recording industry on the practice of notice and take-down agreements in Europe. The enormous challenges posed by Internet piracy of copyrighted materials, the difficulties which the Internet posed for the traditional mechanisms of rights enforcement and the positive experiences gained with existing notice and takedown systems in certain jurisdictions, as well as the success of other alternative means of enforcing intellectual property rights on the Internet, such as the UDRP, may point toward future developments in this area.
Promote adjustment of the institutional framework for facilitating the exploitation of intellectual property in the public interest in a global economy and on a global medium through administrative coordination and, where desired by users, the implementation of practical systems in respect of (1) the interoperability and interconnection of electronic copyright management systems and the metadata of such systems, (2) the online licensing of the digital expression of cultural heritage, and (3) the online administration of IP disputes.
524. Technical protection measures and digital rights management systems are regarded by rightsholders as key elements of their response to the challenges posed by the Internet for the exploitation of their rights. These systems hold the promise not only of achieving greater respect for the rights concerned in the online environment, but also of facilitating access to online material. Over the last several years, there has been a veritable explosion in the development of digital rights management systems for managing content in the music, audiovisual and publishing industries. Since the publication of the WIPO Digital Agenda, WIPO has liaised with a number of rights management systems providers and other interested parties with a view to exploring the potential for providing appropriate support, as a neutral third party, to the development of interoperability between them.
525. With regard to the online licensing of the digital expressions of cultural heritage, WIPO has provided intellectual property advice to several cultural heritage institutions located in countries that are members of the Organization, with a particular focus on the Arab region. WIPO also has commissioned a study by the International Intellectual Property Institute on the subject matter, published in 2001, and entitled "Managing Museum Digital Assets: A Resource Guide For Museums."
526. In part as a result of WIPO's Internet Domain Name Processes and the activities of the WIPO Arbitration and Mediation Center in the area of domain name disputes, the use of online procedures for resolving disputes arising in the networked environment is now much more widely accepted than it was at the time of publication of the WIPO Digital Agenda. This is illustrated by the fact that such procedures increasingly are relied upon in other Internet-based industries, such, as for instance, application service providers [592] and keyword providers. [593]
Introduce online procedures for the filing and administration of international applications for the PCT, the Madrid System and the Hague System at the earliest possible date.
527. The introduction of online procedures for the filing and administration of international applications under the PCT consists of two projects: PCT-SAFE (Secure Applications Filed Electronically), which focuses on enabling the electronic filing of applications, and IMPACT (Information Management for Patent Cooperation Treaty), devoted to automating the processing of applications from their filing onwards.
528. PCT-SAFE has two goals, namely the introduction of a common standard for data exchange between the applicant, patent offices and the WIPO Secretariat, and the development of an information technology platform to support the filing of electronic applications and related documents. After consultations with all interested parties, including users of the PCT, agreement was reached at the end of 2001 on a Standard for the Electronic Filing and Processing of International Applications, which has come into effect in early 2002. Since that date, any PCT receiving Office having the necessary technical systems in place is able to decide to accept the filing of international applications in electronic form.
529. IMPACT was launched in 1998 by the Assemblies of the Member States of WIPO, with the goal to fully automate the PCT operations, in order to modernize, and make more efficient and cost effective, these operations at the WIPO Secretariat, in particular with regard to the filing, receipt, processing, storage, publication and dissemination of international applications and related documents and data. The Project has been planned in three phases: Phase 1 is called COR, Communication on Request; Phase 2, is called IB, International Bureau, and Phase 3 is IB/RO, International Bureau as a Receiving Office. During Phase I, the IMPACT Communication System is developed, a new automated system for the communication by the Secretariat of certain PCT-related documents to designated/elected Offices. Phase 2, the IB Phase, will result in the further automation of PCT operations at the WIPO Secretariat. An electronic document management system for handling the increasing number of international applications will be introduced and the internal work processes of the PCT Operations Department will be automated. Finally, Phase 3 (RO/IB) will build on the functionality developed during the IB Phase in order to automate the operations in the PCT Receiving Office Section of the WIPO Secretariat.
530. The processing by the WIPO Secretariat of international applications filed under the Madrid System and, to a lesser degree, those under the Hague Systems, have been supported by information technology systems for many years. [594] Since the publication of the Digital Agenda, there has been a steady increase in the number of Member States involved in the use of the electronic means supporting the procedures of the Madrid System. Under these procedures, the Secretariat is currently making available notification data and images electronically to the Offices of 23 Member States. [595] In 1996, there were some 10 Member States receiving such data electronically. Further, the national Offices of two Member States are using the same electronic standard also for transmitting data to the Secretariat in the context of the Madrid procedures, i.e. Australia and Switzerland. In the course of 2002, the Benelux Office will commence doing so as well.
Coordinate with other international organizations in the formulation of appropriate international positions on horizontal issues affecting IP, in particular the validity of electronic contracts and jurisdiction.
531. Significant efforts have been made during the last several years to reach agreement on an international instrument on jurisdiction and enforcement of judgments, particularly in the framework of the Hague Conference on Private International Law, through negotiations on the draft Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters. The possible inclusion of provisions regarding intellectual property in the draft convention has been the subject of much discussion. In January 2001, WIPO organized a Forum on Private International Law and Intellectual Property, [596] focusing not only on questions of jurisdiction and enforcement of judgments, but on a broader range of private international law topics concerned with intellectual property, including questions of applicable law, in order to provide its Member States and the international intellectual property community with an opportunity to hear from prominent thinkers in the field and to exchange views on the subject matter. The Forum was a first step in the process of identifying possible intellectual property-specific issues for international cooperation in the sphere of private international law.
[589] Among the developing countries that have ratified or acceded to the WCT and/or WPPT are Albania, Argentina, Belarus, Bulgaria, Burkina Faso, Chile, Colombia, Costa Rica, Croatia, Czech Republic, Ecuador, El Salvador, Gabon, Georgia, Guinea, Honduras, Hungary, Indonesia, Jamaica, Kyrgyzstan, Latvia, Lithuania, Mali, Mexico, Mongolia, Panama, Paraguay, Peru, Philippines, Republic of Moldova, Romania, Saint Lucia, Senegal, Slovakia, Slovenia and Ukraine.
[590] These issues concern, in particular: (1) the list to be relied upon to identify the names of countries which would benefit from the protection envisaged; (2) the extension of the deadline for the notification to the Secretariat of names by which countries are commonly known; and (3) how to deal with acquired rights.
[591] The ccTLDs in question are .AC (Ascension Island), .AE (United Arab Emirates), .AG (Antigua & Barbuda), .AS (American Samoa), .AU (Australia), .BS (Bahamas), .BZ (Belize), .CC (Cocos Islands), .CY (Cyprus), .EC (Ecuador), .FJ (Fiji), .GT (Guatemala), .LA (Lao People's Democratic Republic), .MD (Republic of Moldova), .MX (Mexico), .NA (Namibia), .NU (Niue), .PA (Panama), .PH (Philippines), .PN (Pitcairn Island), .RO (Romania), .SC (Seychelles), .SH (St. Helena), .TT (Trinidad and Tobago), .TV (Tuvalu), .UG (Uganda), .VE (Venezuela) and .WS (Western Samoa).
[592] See http://arbiter.wipo.int/asp/disputes/
[593] See http://arbiter.wipo.int/keywords/
[594] For a more detailed description of the technology systems in question, see paras.494 -505.
[595] The Member States in question are: Australia, Austria, Benelux (Belgium, Luxembourg and the Netherlands), Cuba, the Czech Republic, Denmark, Estonia, Finland, France, Greece, Hungary, Ireland, Japan, Norway, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland and the United Kingdom.
[596] For the program and papers of this Forum, see http://www.wipo.int/news/en/?wipo_content_frame=/news/en/conferences.html.
