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THE
REPUBLIC OF SINGAPORE |
WORLD
INTELLECTUAL
PROPERTY ORGANIZATION |
WIPO SEMINAR FOR ASIA AND THE PACIFIC
REGION ON THE INTERNET AND THE PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
organized by
the World Intellectual Property Organization (WIPO)
in cooperation with
the Ministry of Law,
the Attorney-General's Chambers,
the National Science and Technology Board,
the Singapore Productivity and Standards Board
and
the Singapore Trade Development Board
of the Government of the Republic of Singapore
Singapore, April 28 to 30, 1998
I. WIPO'S WORK PROGRAM IN 1998 AND 1999 RELATING
TO INTELLECTUAL PROPERTY PROTECTION AND THE INTERNET
Document prepared by the International Bureau
I. INTRODUCTION
The Seminar which started this morning has assembled together a group of notable
experts on the subject of the Internet and the protection of intellectual property rights
(IPRs). They come from the four corners of the world. As they will be examining in detail
the main IPR issues raised by the phenomenal development of the Internet in the current
decade. It may therefore be more profitable for everyone present today if, in place of a tour
d'horizon of the seminar theme, this paper details what and how the World Intellectual
Property Organization (WIPO) can contribute to resolving the problems that the
international community is facing.
II. WIPO IN BRIEF
For those in the audience who may never have, before today, heard about WIPO or know
next to nothing of it, a brief description of the Organization might be helpful. WIPO is
an international intergovernmental organization which has as its mandate the promotion of
the protection of intellectual property throughout the world through cooperation among
States. The Organization is a member of the United Nations family of organizations. It has
a current membership of 169 countries and administers some 21 international treaties
dealing with one or more aspects of intellectual property. WIPO is located in Geneva,
Switzerland, and has a staff of about 650 persons coming from over 60 countries. Its
Director General is a national of Sudan.
Unlike almost all the other UN organizations, WIPO enjoys sound financial health. This
is due primarily to the fact that over 85% of its yearly budget of 200 million Swiss
francs is covered by the international registration services that it provides to the
market sector, that is, to industry and commerce.
Broadly speaking, WIPO's main functions can be grouped into three categories:
progressive development of international intellectual property law and technical
standards; assistance to developing countries and international protection registration
systems.
Today's seminar can be said to fall into the first two categories for the following
reasons. Our meeting is aimed at helping developing countries in the region clarify and
better understand the implications of the Internet on intellectual property protection: it
is thus assistance to developing countries. At the same time, it promotes an international
dialogue leading to the development of common, harmonized legal approaches to such
questions.
III. IMPACT OF DIGITAL TECHNOLOGY ON INTELLECTUAL
PROPERTY LAW
(a) Introduction
The growth of digital networks such as the Internet poses problems for the protection
and enforcement of IPRs. The WIPO work program for the years 1998 and 1999 (the
Organization has a biennial program and budget) includes a range of initiatives to tackle
the implications of such technology for copyright and industrial property law, and the
impact on industrial property law via electronic commerce transcending national
jurisdiction. The consultative base between the Secretariat and the member States as well
as with the relevant interest groups and market sector representatives will be at once
broadened and deepened to enable the Organization to anticipate better the challenges
posed to the intellectual property system by technological change.
Despite the steady trend towards the international harmonization of substantive norms
and standards, the reality is that the traditional ways of enforcing IPRs can be
burdensome and expensive. This has stimulated interest in the possibilities of alternative
dispute resolution, an interest that the WIPO Arbitration and Mediation Center serves. The
WIPO program foresees further progress here, including on-line dispute resolution services
which exploit Internet technology. Indeed, the Center has recently begun to providing the
on-line service for resolving disputes concerning trademarks and Internet domain names.
This service is expected to be much used because of the likely number of such disputes and
because of the obvious advantages that the service offers compared to traditional
litigation.
(b) Development of the Law of Copyright and Related Rights
The WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT)
offer appropriate responses to the issues raised by digital technology, particularly by
global networks such as the Internet. To enter into force, however, they each require 30
instruments of accession or ratification; to obtain that, the WIPO Secretariat has to
undertake active promotional activity. As of April 15, 1998, 51 countries have signed the
WCT and 50 countries have signed the WPPT, while only 2 and 1 countries, respectively,
have adhered to them.
The December 1996 Diplomatic Conference which adopted the two treaties also had on its
agenda the issues of the rights of performers in respect of "audiovisual
performances" and of a possible sui generis protection system for databases,
but did not adopt norms on those issues. Preparation of new international norms, or at
least offering guidance on those issues, as well as on two further issues identified
during preparatory work on the treaties - namely, the rights of broadcasting organizations
and of distributors of cable-originated programs and the intellectual property protection
of folklore - has been left, initially, for the 1998-99 biennium. The rapid growth
in the applications of digital technology, particularly in global networks such as the
Internet, creates a need for continuous attention from the viewpoint of the protection,
exercise and enforcement of copyright.
Effective implementation of the WCT and WPPT will be essential if the Internet and
other global digital networks are to be fully used as a market place for cultural and
information industries in due accordance with the public interest. Hence it will be a
priority for WIPO in 1998 and 1999 to promote adherence to, and implementation of, these
treaties and secure their entry into force as soon as possible. The further development of
law in the fields noted above will serve to extend the scope of international protection
of copyright and related rights in the emerging information society. WIPO activities aimed
at developing the international system for protecting copyright and related rights will be
better harmonized, more thoroughly prepared and more transparent, partly through the
operations of a new Standing Committee on Copyright and Related Rights.
In addition, the Secretariat of WIPO will undertake regular monitoring of and prompt
reaction to developments in digital technology, particularly global networks such as the
Internet, from the view point of copyright and related rights; and will offer guidance in
this field, both to the WIPO Members States and to interested groups.
By the end of 1999, it is expected that progress in adherence to, and implementation
of, the WCT and the WPPT, will be such that they will enter into force not later than in
the 2000-2001 biennium. Further, it is expected that a Protocol to the WPPT on Audiovisual
Performances would be adopted by a diplomatic conference. Also, it is hoped that progress
in the preparatory work on new norms concerning intellectual property in databases, and
the rights of broadcasting organizations and of distributors of cable-originated programs,
would be such that treaties may be adopted not later than in the 2000-2001 biennium, or at
least appropriate guidance be offered to WIPO member States for harmonization of their
laws on these issues.
To achieve the above-mentioned progress, there will be held two or three meetings of
representatives of WIPO member States and of the European Community, taking the form,
depending on the progress and the requirements of the preparatory work, of a committee of
experts (involving also interested intergovernmental and non-governmental organizations);
of sessions of the Standing Committee on Copyright and Related Rights; of informal
consultations and negotiations, and/or of a preparatory meeting to deal with the
procedural aspects of the diplomatic conference. In addition, there will be one or two
series of regional consultation meetings for developing countries and for certain European
and Asian countries combined with other regional consultation meetings.
A number of government representatives of developing countries and certain other
countries will be provided with financial assistance to attend the meetings concerned.
(c) Protection of Databases
The Berne Convention, the TRIPS Agreement and the WCT provide for the protection of
original databases by copyright. The agenda of the December 1996 Diplomatic Conference
included a draft treaty on a sui generis system of protection for databases. It
envisaged the protection of the rights of makers of databases in respect of the
utilization or extraction of the contents of both original and non-original databases,
under certain conditions. The Conference did not discuss that draft treaty in substance,
but recommended that the schedule of further preparatory work of a WIPO Treaty on
Intellectual Property in Respect of Databases be discussed and established. In September
1997, an Information Meeting was held on this issue, where it was found that discussions
of any details of a possible treaty should be preceded by consideration of some more
fundamental questions, for example, the need for, the desirable nature and extent of any
protection going beyond the existing protection of databases by copyright or by other
legal means such as by protection against unfair competition or by contracts, as well as
the foreseeable economic, cultural and social impact of such protection.
The objective of WIPO's work during 1998 and 1999 would be to review the present
situation, at national, regional and international levels, of the protection of databases
by copyright and by other legal institutions, such as sui generis protection or
protection against unfair competition; determine where harmonization and updating of the
relevant norms are necessary; and obtain such harmonization and updating through binding
norms, where appropriate, or through recommendations, guiding principles or other forms of
guidance.
To achieve that objective, there will be held two or three meetings of representatives
of WIPO member States and of the European Community, taking the form, depending on the
progress and requirements of the preparatory work, of information meetings, sessions of a
committee of experts (involving also interested intergovernmental and non-governmental
organizations), sessions of the Standing Committee on Copyright and Related Rights, or
informal consultations and negotiations. If necessary, the Secretariat will commission two
or three studies by external experts for consideration at the meetings. Furthermore, there
will be one or two series of regional consultation meetings for developing countries and
for certain European and Asian countries combined with other regional consultation
meetings. A number of government representatives of developing countries and certain other
countries will be provided with financial assistance to attend the meetings in question.
It is hoped that there will be sufficient progress so that, probably in the 2000-2001
biennium, a treaty on intellectual property in respect of databases could be adopted, or
at least, the adoption of recommendations, guiding principles or similar forms of guidance
to harmonize regional and national legislation on this issue.
(d) Copyrights, Related Rights and Digital Technology
In responding to the most important and urgent issues for copyright and related rights
raised by digital networks such as the Internet, the WCT and WPPT determined the rights to
be granted and the possible exceptions to, and limitations on, rights. They also
introduced obligations concerning technological measures of protection and rights
management information systems, but left it to the interested parties to work out and
operate such measures and systems. While promoting adherence and implementation in
relation to these treaties, WIPO will continue studying certain issues they do not cover,
and regularly monitor developments in digital technology and global networks.
WIPO will also act as a forum for interested groups to work together for the creation
and operation of the most appropriate and most efficient methods for the protection,
exercise and management of rights in the digital environment.
In 1998 and 1999, the following activities are planned by WIPO:
- One or two sessions of the Standing Committee on Copyright and Related Rights over
the biennium to consider in particular the impact of digital technology and global
information networks on copyright and related rights, each session preceded by a hearing
for, or other consultations with, interested non-governmental organizations on the issues
to be discussed in that session.
- Two or three meetings of the newly established Advisory Committee on Management of
Copyright and Related Rights in Global Information Networks, with the representatives of
owners of copyright and related rights and Internet service and access providers to
discuss the exercise and collective management of rights in a digital environment,
particularly in global networks, including the practical application of technological
measures of protection, rights management information systems and new methods for
management of rights; commissioning of two or three studies on these issues by external
experts who will also take part in consultations.
- A world-wide symposium on the creation, licensing and protection of multimedia
productions.
- A meeting of a group of consultants on the nature and extent of liability of service
and access providers in respect of transmissions on digital networks such as the Internet;
commissioning of two or three studies by external experts, to be discussed by these
consultants; and publication of the studies and meeting materials for use in advising
governments, legislators and the judiciary.
- A meeting of a group of consultants on the private international law aspect of the
protection of works and objects of related rights transmitted through global digital
networks; commissioning of two or three studies by external experts on these aspects, to
be submitted to the group of consultants.
- Financial assistance to enable some officials of developing and certain other
countries to attend selected meetings described above.
The expected results of the activities described above would include the following:
- The availability of up-to-date information, in respect of the protection, exercise
and collective management of copyright and related rights.
- Progress in the clarification of the issues relating to the licensing and protection
of multimedia productions so that, no later than in the 2000-2001 biennium,
recommendations, guiding principles or other similar forms of guidance may be offered to
governments, legislators and the judiciary of WIPO member States.
- Progress in outlining options for solving the private international law problems
emerging in respect of transmission of works and objects of related rights through global
digital networks, such as the Internet; publication of a study or collection of studies on
those problems and options, not later than in the 2000-2001 biennium.
- Contribution to the establishment and operation of harmonized systems of exercise and
management of copyright and related rights in a digital environment, particularly on the
Internet.
(e) Protection of Industrial Property Rights in Global
Electronic Commerce
Global electronic commerce, including commerce on the Internet, is growing at an
unprecedented rate, and is expected to reach a level, by some estimates, of over US$300
billion by the year 2005. In a medium which channels such an extensive volume of commerce,
effective protection of industrial property rights is essential. Information placed into
global electronic commerce by a commercial user is immediately accessible, simultaneously,
in every country of the world, hence creating a difficult challenge for the current
industrial property system, in which rights are enforced on a territorial basis. An
example of a pressing issue which crops up with increasing frequency is the protection of
trademarks in the Internet environment.
The fact that commercial users of global electronic commerce could be subject to the
laws and to the courts of many countries simultaneously has serious implications for
principles concerning protection of industrial property rights in international commerce.
These principles should be re-evaluated in the context of global electronic commerce, and
possibilities for international dispute settlement alternatives specifically designed for
industrial property disputes in global electronic commerce should be explored.
Consequently, a study of the appropriate legal infrastructure within which industrial
property rights can be effectively protected in the emerging electronic commerce system
needs to be undertaken as a matter of urgency. This study would take into account relevant
deliberations of the expert meeting on intellectual property beyond territoriality
referred to later in this paper.
The main activities that will be undertaken in this area are described below:
- Exploration of the relevant issues by an Advisory Committee on Protection of
Industrial Property Rights in Global Electronic Commerce, made up of WIPO member States
and interested intergovernmental and non-governmental organizations.
- Studies to identify problems and potential solutions for protection of industrial
property rights in global electronic commerce.
- Cooperation with other international national institutions, including other
international intergovernmental organizations, concerning protection of rights in global
electronic commerce.
- Research into the applicability of current industrial property laws to global
electronic commerce; identification of areas where global principles could be developed;
and preparation of analyses, reports and recommendations.
As for the expected outcome of the activities, they are twofold:
(i) greater practical insights into the applicability of current industrial property
law to global electronic commerce and possible areas for development of global principles;
(ii) clearer practical understanding of the desirability and feasibility of adaptation
of existing principles of industrial property protection to the protection of industrial
property rights in global electronic commerce.
(f) Intellectual Property Rights Beyond Territoriality
Under the international intellectual property system, IPRs have been used and managed
within a framework of distinct, national territories. However, an increasingly networked
and integrated environment demands that new ways are conceived to exercise IPRs beyond
this principle of territoriality. In this biennium, the possible evolution of the
intellectual property system in relation to territoriality will be explored. Specific
points of study will include national treatment, exhaustion of rights, management of
rights, choice of law, evidentiary rules, courts of competence and execution of judgments,
as well as the implications of regional and international registration of industrial
property rights, and other forms of cooperation between national granting authorities.
Close attention will be given to changes in territoriality following from regional
integration through agreements such as the European Union, ASEAN, APEC, Common Market of
the Southern Cone (in Latin America) (Mercosur), North American Free Trade Association
(NAFTA) and Southern African Development Community (SADC).
In the year 2000 and beyond, other stress points will be studied by WIPO, such as those
arising from tensions between intellectual property and policies favoring competition,
free trade, access to information and affordable healthcare. The conceptual groundwork
undertaken in these studies is aimed at illuminating possible ways ahead for the
intellectual property system in all such areas.
It is planned that the following work will be carried out in 1998 and 1999:
- An expert meeting (drawing on the fields of intellectual property, economics,
environment, information and communication technologies), to explore new practical
approaches to the principle of territoriality in the global intellectual property system,
with publication and dissemination of the meeting's results and recommendations for new
approaches to the principle of territoriality.
- Consultations with competent secretariats, such as the European Commission and the
Secretariats of ASEAN, APEC, COMESA, Mercosur, NAFTA and SADC, to secure input on the
implications of this issue in the exercise of IPRs in regional cooperation arrangements.
The expected results are likely, for the time being, to be modest. The ongoing
examination of the interaction between intellectual property and other policy objectives
that are influenced by the changing nature of territoriality will ensure the continuing
practical relevance of the intellectual property system. At the same time, there should be
an enhanced understanding of the changing role of territoriality in the global
intellectual property system and of possible improvements to the system in response to
these challenges.
(g) Intellectual Property Information on the Internet
The member States of WIPO approved, for the 1998-99 biennium, an important project that
aims at creating a WIPO global intellectual property information network. The project
takes advantage of the advance in digital communications technology and of the Internet
while, at the same time, reorganizing the economic importance of timely access to
intellectual property information in a cheap and efficient way.
The idea behind this project which will be spearheaded by the WIPO Secretariat, is to
create an information exchange network in which each country will serve as the local link,
providing information and statistics on intellectual property activities, such as the
number and types of trademarks registered or patents granted, and for which good or
service or field of technology as well as the identity of the owners of the rights.
Under the project, WIPO will provide sufficient telecommunication capacities in
hardware and software to local national and regional intellectual property offices
participating in the network. The aim of such assistance in kind is to enhance local
capacities to generate, store, access and exchange information with each other.
Given the disparities which exist between countries as to financial and human resources
available and the different technical standards and parameters embodied in the range of
hardware and software available on the market, this project of WIPO is obviously an
ambitious one. Many steps and preparations will be necessary and the entire process will
take a number of years. Fortunately, there is a strong desire on the part of the member
States to establish such a network, and the financial resources required by the
Organization are not lacking.
The main strategy in the next 20 months can be summarized as follows: WIPO will provide
the basic network to facilitate the access to and exchange of intellectual property
information and will liaise with providers of such information from public and private
sectors. That network will be used to improve the interaction between the intellectual
property community members, thus enhancing the protection and enforcement of intellectual
property rights. Further, WIPO will serve as a forum through which offices can
concurrently develop an organized collection of information in electronic form
(Intellectual Property Digital Libraries (IPDL)) that will be made accessible to the
general public, with certain information being accessible only to designated communities
(such as intellectual property offices) through the network. As WIPO generates
considerable information through its own international registration services for patent,
trademark and industrial designs, the Organization itself will be an important source of
information and will itself develop an IPDL. Moreover, an ambitious project of
computerizing the operations of the Patent Cooperation Treaty (PCT), to be launched in
1998, will be closely coordinated with the global network project. The PCT project itself
may spend up to 40 million Swiss francs, with a project life span extending, obviously,
beyond the year 2000.
Enhanced expert resources within the WIPO Secretariat will coordinate the development
of the network, and aspects related to the network interfaces, equipment, technical
assistance and training. The Secretariat will outsource tasks in these areas to the
maximum appropriate extent. Pilot projects will be initiated and coordinated to assess the
functional and technical aspects of the network, taking advantage of the rapid
developments in information technology, with a view toward implementing flexible and
scaleable solutions. At the same time the automated systems architecture within the
Secretariat will be maintained, modernized and developed to ensure that it can fully
support all information technology activities within the Secretariat.
At the end of 1999, there should have been an initial deployment of the network
infrastructure and the provision of technical and training services, utilizing modern and
secure technologies, to developing countries; the facilitation, through deployment of the
network, of the modernization of activities for the protection and enforcement of
intellectual property rights; and improved access to intellectual property information
through the network for all concerned, whether in the government or private sectors, in
developing or developed countries.
The member States of WIPO have earmarked about 25 million Swiss francs for this global
information network project in 1998 and 1999 alone. Because of its size and importance,
the project will be kept under close surveillance by the member States through, in the
first instance, the newly-created Standing Committee on Information Technologies. Some
financial assistance will be provided to developing countries to facilitate their
participation in meetings of the Standing Committee.
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