Background Resources Commentary
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1. Public policy, intellectual property (IP) standards and IP law have a complex interrelationship. IP laws and standards give effect to policy choices, and policy interests affect how laws are interpreted and applied. Within this complex picture, a wide array of rights, interests and obligations are at stake. How are these rights and responsibilities defined, and how do specific rights and responsibilities tie in with public policy interests?

IP law, standards and policy are developed both at the international level, including at WIPO (although not exclusively)¹, and at regional and national levels, in legislatures, by the judiciary and among industry representatives and civil society. Diverse stakeholders engage in such policy processes. They include: national governments (WIPO currently has 182 Member States, represented at WIPO meetings by government delegations), non-governmental organizations representing a variety of interest groups such as industry and civil society (some 193 non-governmental organizations currently enjoy permanent observer status at WIPO and many more are admitted to WIPO meetings on an ad-hoc basis²), and individuals such as academics and legal professionals. At the global level, the question is how these diverse stakeholders can best work together to promote the overall interests of society when developing and implementing the IP system. Clearly, each of the stakeholders above have a role and share responsibility for IP policy development in the general public interest, , with governments taking the lead in setting the legal framework and policy directions. Yet individual holders of IP rights also bear the responsibility for exercising their rights appropriately, one might even say sustainably. Legal constraints and safeguards apply against abuse of IP rights, and anticompetitive behavior; but apart from legal measures, there is a debate about what ethical considerations should apply. And are consumers and users of IP works also responsible for enjoying their interests in a way that sustains creativity and innovation (for example, by respecting IP rights)?

2. In the field of copyright, at their current level of development, technical protection measures (TPMs) and digital rights management (DRM) systems are largely unable to discriminate between digital content that is protected by copyright, on the one hand, and content that is in the public domain on the other; nor can DRM systems generally process requests from users claiming they are eligible to free access to content under a limitation or exception to copyright in a given national law. Anti-circumvention laws, supplemented by End User License Agreements (EULAs), may in many cases preclude users from accessing digital content to which they may be entitled. Legislative attempts to ensure that TPMs/DRMs applied by rightsholders do not impede access to content that should be available without permission are in their infancy (Digital Millennium Copyright Act (DMCA), Section 1201(a)(1),³ and European Commission Copyright Directive, Article 6.4⁴).

3. Maintaining a balance between protection of IP rights and the promotion of competition is a major goal in the Information Society. Historically, IP rights have functioned almost exclusively in the economic sphere. Apart from limitations on the duration of rights ensuring that IP subject matter at some point leaves the control of rightsholders and enters the public domain, preventing the use (abuse) of IP rights to restrict competition among creators, innovators and other potential holders of IP is not often advanced to justify the various exceptions and limitations to rights that allow use of protected subject matter without payment or permission. Indeed, the TRIPS Agreement provided that limitations and exceptions to both copyright (and patent) rights must be limited to cases that do not conflict unreasonably with economic exploitation opportunities.

While remedies for anti-competitive behavior are provided under antitrust or competition legislation in many countries, stakeholders have begun to suggest that the IP system itself should be more effective in promoting competition among creators and innovators, for example through broader IP exceptions (for example, the expansion of fair use under copyright) or, in certain cases greater resort to compulsory licensing.

4. In the field of domain name dispute resolution, the Uniform Domain Name Dispute Resolution Policy (UDRP) and Rules were adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) in 1999, to address the problem of ‘cybersquatting’, which involves the pre-emptive registration of trademarks by third parties as domain names. The UDRP provides a procedure by which trademark holders can bring complaints against alleged cybersquatters, and, if certain conditions are met, seek to recover the domain names. The UDRP contains a number of checks and balances: it is limited to clear cases of abuse, accepts any valid right or legitimate interest a respondent may have in its domain name as a defense, and does not impose any fees on the respondent (unless he moves to have the case decided by a three-member panel). In addition, the UDRP allows Panels to address cases of ‘reverse domain name hijacking’, defined as “using the Policy in bad faith to attempt to deprive a registered domain name holder of a domain name” (UDRP Rules, para.1 and 15(e))⁵. Most importantly, the UDRP does not preclude either party’s recourse to a national court of justice and facilitates such recourse for a losing respondent by requiring the complainant to submit to a “mutual jurisdiction” either at the place of the respondent or the registrar for that purpose. A decision ordering transfer or cancellation of the disputed domain name will only be implemented if the respondent has not initiated court litigation within 10 days following the notification of the decision (UDRP, paragraph 4(k); UDRP Rules, paragraph 1, 3(b)(xiii)).

5.5. Finally, in the field of patents, the current debate about patents on innovations based on genetic resources has raised searching questions about the legal and equitable basis of the right to receive and exercise a patent. The argument has been made that when an inventor benefits from access to genetic resources or traditional knowledge (TK) in creating an invention, she should be held to an obligation to share these benefits with the custodians of the genetic resources or TK. This has led to specific proposals to broaden the base of information that a patent applicant must disclose, with some calling for disclosure of genetic resources and TK used in an invention, as well as information on the legal conditions surrounding access to the resources and knowledge (such as whether access was in accord with equitable benefit-sharing regulations)⁶. This leads in turn to a debate about the interplay between broader equitable principles and the right to apply for and obtain a patent.



Questions to consider

• What is the ‘public interest’ in the Information Society?
• Does expansion of the scope of IP protection (e.g., duration of protection) pose a risk to the public interest?
• How can the public interest be protected from abuse of IP rights?
• Is there a duty to create, as well as a duty to share information?
• Do rightsholders owe any duty beyond compliance with the in-built checks and balances of the IP system (e.g., disclosure of patent information, limited terms for copyright, trademark and patent protection)?
• Do owners of certain types of IP rights – such as patents in pharmaceutical products or genetic resources – owe special duties to the public?
• How can or should rightsholders ensure access to such content on a multi-territorial basis?
• Can limitations and exceptions to IP rights serve as tools to promote competition? If so to what extent?
• If IP rights provide incentives to creativity and innovation, should competition law play a greater role in ensuring that rightsholders do not deny access to content on which further creativity and innovation might be based?

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1 Among other international organizations that consider issues relating to IP are: Secretariat of the Convention on Biological Diversity (CBD), Food and Agricultural Organization (FAO), International Labour Organisation (ILO), International Telecommunication Union (ITU), International Trade Centre (ITC), Office of the High Commissioner for Human Rights (OHCHR), Organisation for Economic Cooperation and Development (OECD), Permanent Forum on Indigenous Issues, United Nations Conference on Trade and Development (UNCTAD), United Nations Development Programme (UNDP), United Nations Commission on International Trade Law (UNCITRAL), United Nations Educational, Scientific and Cultural Organization (UNESCO), World Bank, World Health Organization (WHO), and World Trade Organization (WTO).

2 For information about admission criteria for permanent observer status at WIPO, see http://www.wipo.int/about-wipo/en/members/admission/index.html. In addition, ad hoc observer status may be requested for a particular meeting by direct application to the director of the substantive division concerned.

3 Digital Millennium Copyright Act of 1998. (Adobe PDF). Refer also to the US Copyright Office Summary of the DMCA (Adobe PDF).

4 Directive 2001/29/EC of the European Parliament and of the Council
of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the Information Society.

5 “To succeed on a claim of RDNH [reverse domain name hijacking], the Respondent must show that the Complainant knew of the Respondent’s unassailable right or legitimate interest in the disputed domain name or the clear lack of bad faith registration and use, but nevertheless brought the Complaint in bad faith. Sydney Opera House Trust v. Trilynx Pty Limited, WIPO Case No. D2000-1224. The Panel must consider both “malicious intent and recklessness or knowing disregard that the Respondent possessed legitimate interests”. Gold Line International Inc v. Gold Line, WIPO Case No. D2000-1151.” See BAA plc v. Bob Larkin, WIPO Case No. D2004-0555. For an index of UDRP decisions taken by panelists of the WIPO Arbitration and Mediation Center dealing with reverse domain name hijackings, consult the WIPO UDRP Panel Decisions and Legal Index.

6 See the WIPO Technical Study on Disclosure Requirements in Patent Systems Related to Genetic Resources and Traditional Knowledge. (Adobe PDF)