Background Resources Commentary
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1. Intellectual property (IP) law and policy is fundamentally a matter for individual countries to set, although the international layer of law and policy helps set the framework that individual countries work within. It’s at the domestic level that IP rights are granted, exercised and enforced, and that any measures against the misuse of rights are applied. Users of IP-protected material need to get authorization from the rightsholder under national laws, or make use of limitations or exceptions under national laws. So the practical impact of the IP system is ultimately determined by what domestic laws and legal systems provide for. For domestic policymakers, understanding the extent of the international framework and the flexibilities it offers is important for optimising policy outcomes. Regional frameworks also play an important role. At the international level, a range of legal and policy elements and processes help shape the policy space that domestic policymakers work within. A number of United Nations (UN) bodies and specialized agencies work on issues relevant to IP policymaking.¹

2. Within the UN system, WIPO, is the specialized agency with specific responsibility for developing IP policy at the international level. The WIPO Secretariat (also called the International Bureau), is made up of some 940 staff from 95 different countries, and serves the needs of the 182 Member States² who sit on various permanent and ad hoc committees that meet regularly to negotiate and decide IP policy. The WSIS Declaration of Principles recognizes that “building an inclusive Information Society requires new forms of solidarity, partnership and cooperation among governments and other stakeholders, i.e., the private sector, civil society and international organizations.”³ And that “[f]acilitating meaningful participation by all in intellectual property issues and knowledge sharing through full awareness and capacity building is a fundamental part of an inclusive Information Society.”⁴

The Convention that established WIPO⁵ provides that only States can be Members, however, WIPO has traditionally been open to non-State observers and is increasingly building collaborative relationships with representatives of the private sector and civil society. Permanent observer status at WIPO is currently held by 172 non-governmental organizations, 65 international intergovernmental organizations, and 10 national non-governmental organizations.⁶

The WIPO Convention provides that the Organization’s mission is: “to promote the protection of IP throughout the world through cooperation among states”⁷ in order to encourage creativity and innovation. WIPO’s main fields of activity are;


(1) normsetting. This takes place through traditional treaty making processes (WIPO administers 23 international treaties), but also new forms of international multistakeholder consultation, such as the two WIPO Internet Domain Name Processes, which were held online and through physical meetings that were reported online;

(2) providing international IP services to the private sector. WIPO facilitates the worldwide protection of IP through its registration services for patents, trademarks and designs, and through the dispute resolution services offered by the WIPO Arbitration and Mediation Center; and

(3) enhancing access to the IP system. WIPO assists its developing country members as well as small and medium sized enterprises to use IP as a tool for economic development.


3. The Information Society poses particular challenges for IP policy-making. In the digital environment, IP concerns touch more people’s lives, and involve more stakeholders from diverse backgrounds with differing needs and perspectives than ever before. The rapidity of technological developments, which have a real impact on substantive IP issues, risks leaving less technologically advanced stakeholders behind, thereby excluding them from meaningful participation in policy-making. To ensure the participation of all Member States in policy-making processes, WIPO funds the participation of developing country representatives at all major meetings, and organizes awareness-raising activities throughout the world to enable full and informed participation in developing IP policies.⁸

The speed with which information and communications technologies are developing challenges the traditional policy-making approach of organizations such as WIPO. International IP treaties have traditionally taken between 10 and 15 years to negotiate, and then various delays before they come into force. Even the fast-tracked WIPO Internet Treaties (WCT and WPPT) took six years to negotiate, and six years to come into force with the required 30 ratifications or accessions by States. WIPO is exploring alternative ways of addressing the need for new IP policy and solutions, through flexible ‘soft law’ approaches such as joint recommendations,⁹ best practices,¹⁰ model laws and administrative dispute resolution procedures,¹¹ that are better adapted to finding solutions for IP-related needs in the Information Society. WIPO is also working on streamlining the decision-making processes by Member States and the working methods and procedures of the Organization to make them more transparent, cost-effective, customer-focused, and results-oriented.

WIPO’s challenge is to remain effective in encouraging creativity and innovation, to respond to the legitimate and changing needs and expectations of users, and to retain flexibility to accommodate both rapid technological developments and diverse national policy objectives in IP policy development. However, these concerns and challenges are not entirely new to the Information Society. The source of modern Anglo-American patent law is found in the English Statute of Monopolies of 1623, which provided true inventors with up to 14 years of exclusive rights over their inventions provided that “they be not contrary to law nor mischievous to the state by raising prices of commodities at home, or hurt of trade, or generally inconvenient.”¹² The process of balancing private rights and the public good is integral to the ongoing development of IP policy at both national and international levels, and is the focus of WIPO’s work today.

4. The WSIS discussions focus on the critical importance of “capacity building” to ensure that all stakeholders can participate meaningfully in the development of policy for the Information Society. While capacity building remains undefined, the WSIS Declaration of Principles emphasizes the need for a people-centered, inclusive society, empowering young people and women in the decision-making process, and the engagement of all stakeholders in building capacity. The Declaration states, at paragraph 29, that “each person should have the opportunity to acquire the necessary skills and knowledge in order to understand, participate actively in, and benefit fully from, the Information Society and the knowledge economy.”

The WSIS Declaration also describes the need to build national capability in research and development (R&D) of ICTs.¹³ Patent and copyright protection mechanisms provide a useful tool for promoting R&D within developed and developing countries, and help to establish the “enabling environment” recognized in the WSIS Declaration as essential to the Information Society.¹⁴

India, for example, is a country that is successfully fostering its economic development, and involvement in ICT policy-making, by focusing on high technology, investing in human resources through training and technical skills development, and implementing national policies and laws that establish IP protection for its domestic and international endeavors. The Digital Opportunity Initiative Report states that “India’s well-established framework for protecting intellectual property rights has been an important inducement to business investment.”¹⁵ The Indian software and services export industry reported revenues of US$7.2 billion in 2002-3, a growth of 18.4% over the previous year, and growth has been projected at 25% over the next several years.¹⁶ It is also reported that, in 2003-2004, total software and service revenue offshored from the US to India was $12.2 billion, an increase of 28% over the $9.54 billion recorded the previous year. Similar economic development linked to R&D, skills training and capacity building in ICTs is occurring in other developing countries as diverse as Malaysia, Bangladesh, Costa Rica and Estonia, which share a focus on leveraging human resources and knowledge capital as assets for economic and social development.¹⁷ The protections and incentives offered by the IP system play an important strategic role in providing the enabling environment, and the confidence and security needed to further this process.

5. Capacity building involves the empowerment of holders of knowledge and intellectual capital to make informed choices as to how to use or manage that capital, consistent with their values. The WSIS Declaration of Principles acknowledges the critical need for education, including distance learning, as an essential foundation for capacity building.¹⁸ To help raise awareness about IP, WIPO holds a full calendar of conferences, seminars and meetings at its Headquarters in Geneva and in many locations around the world, and details of these meetings are publicly available on the WIPO website.¹⁹

The WIPO Worldwide Academy, founded in 1998, provides teaching, training and research in IP.²⁰ Its programs cater to diverse target audiences, including inventors and creators, business managers and IP professionals, policy makers and government officials of IP institutions, diplomats and representatives, students and teachers of IP and civil society. Its five core programs are: professional training, distance learning, policy development, teaching and research. The distance learning program, for example, has had 30,000 participants in 170 countries since its inception in 1999.²¹ The Academy also aims to promote international cooperation towards capacity building by enhancing IP skills and awareness through global networking with stakeholders and partners.

WIPO’s approach is to educate people about the choices offered by the IP system as a tool, rather than to impose any one model of knowledge management. As to IP rightsholders, WIPO’s role is to inform them about their choices and the economic and policy issues raised by those choices, including the balance that the IP system must maintain between private rights and the public good. This balancing process is constant, and new issues continue to emerge that require consideration and in some cases, redress.

6. The field of traditional knowledge (TK), and the protection of the cultural heritage of indigenous communities, is one such important issue under consideration at WIPO (see Theme 8). The IP system, as a tool, is capable of being used in ways that may or may not be beneficial to indigenous peoples’ interests. This was illustrated by a case involving Mountford, an anthropologist who, in 1940, undertook an expedition to the Northern Territory in Australia. He recorded information revealed to him by the local Aboriginal people, including tribal sites and religious and culturally significant objects, some of which he included in a book “Nomads of the Australian Desert”, which was published in 1976. The plaintiff in the case of Foster v. Mountford²², on behalf of the Aboriginal communities involved, won an action to restrain publication of Mountford’s book on the basis of the common law doctrine of confidential information, although they were unable to bring an action for copyright infringement because the book had not been written by them and they had not acquired copyright in it. The Court held that the publication of the book could disclose information of deep religious and cultural significance to the Aborigines that had been supplied to Mountford in confidence, and its publication would amount to a breach of confidence.

7. Another area where careful balancing has been required has been in the patent field, where respect for TK appeared to be in conflict with the IP system. Concern has been expressed that illegitimate patents may be granted over TK subject matter, where this TK has been acquired from traditional communities. A patent that is not based on a genuine invention is invalid. But the informal nature of TK systems, and their localized geographical quality, can make it particularly difficult for patent examiners to learn about relevant TK when assessing the validity of a patent application. This has resulted in a series of initiatives, ranging from the practical to the legal, to increase the likelihood that relevant TK will be taken into account during the patent examination process. The underlying concern has been that the patent system, rather than recognizing and rewarding genuine new inventions, may serve to misappropriate traditional communities’ existing knowledge - which would be an outcome at odds with the core principles of the system. Significant changes are already underway in the international patent system to deal with this concern (including enhancing the range of TK that patent examiners consider in the course of checking the validity of patent applications), and further changes have been implemented in national laws and are proposed at the international level (such as a specific requirement to disclose any TK or genetic resources used in a claimed invention).

8. The international IP framework includes a number of standards and agreements beyond the treaty system administered by WIPO. For instance, perhaps the most wide-ranging multilateral agreement on IP, the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement)²³ is a key international legal instrument that sets standards for IP systems. While this includes substance from a number of WIPO treaties, it is a distinct legal instrument administered by the WTO. The TRIPS Council of the WTO is engaged on a number of highly topical policy and legal debates on IP issues.

9. Many pressing issues involve consideration from a wide range of policy perspectives, both within and beyond the specific realm of IP policymaking. This requires close policy coordination among international organizations. It also means that policymakers have taken up and reviewed existing international norms from the point of view of broader public policy interests. The WTO Doha Declaration on TRIPS and Public Health²⁴ was an important statement on a critical policy issue of today - the role of IP in relation to public health and access to medicines. The World Health Organization has established a Commission on Intellectual Property Rights, Innovation and Public Health,²⁵ which is considering a range of issues relating to IP, and the development of and access to treatments for neglected diseases. This is currently exploring a wide range of issues within and beyond the traditional scope of IP law and policy.



Questions to Consider

• What does “capacity building” mean in the Information Society?
• How should policy-making function in the Information Society? What is the role of governments, international organizations and individuals in this process?
• Is there meaningful community participation at international level in policy making and capacity building for the Information Society?
• Does the IP system support, or hinder, capacity building in local education and skills training?
• Does international harmonization of the IP system support the Information Society, or hinder its development?

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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 Refer to List of Member States of WIPO.

3 WSIS Declaration of Principles, paragraph 17.

4 WSIS Declaration of Principles, paragraph 42.

5 The Convention Establishing the World Intellectual Property Organization (WIPO), was signed at Stockholm on July 14, 1967, entered into force in 1970 and was amended in 1979.

6 Refer to the list of WIPO Observers, and criteria for admission as a permanent observer at WIPO. In addition, ad hoc observer status may be requested for a particular meeting by direct application to the director of the substantive division concerned.

7 Article 3.

8 See list of WIPO meetings, conferences and seminars.

9 Refer to WIPO Joint Recommendations for the progressive development of IP law.

10 See, for example, the WIPO Country Code Top Level Domain (ccTLD) Best Practices for the Resolution and Prevention of Intellectual Property Disputes, developed by the WIPO Arbitration and Mediation Center.

11 The first WIPO Internet Domain Name Process resulted in recommendations to the Internet Corporation for Assigned Names and Numbers (ICANN) that formed the basis of ICANN’s Uniform Domain Name Dispute Resolution Policy (UDRP) and Rules, which went into effect December 1, 1999. The UDRP is an administrative dispute resolution procedure for resolving conflicts between trademarks and domain names. The WIPO Arbitration and Mediation Center is one provider accredited by ICANN to administer dispute resolution services under the UDRP, and the Center’s 383 international expert panelists have decided more than 7,250 UDRP cases by May 2005.

12 English Statute of Monopolies of 1623. (Adobe PDF)

13 WSIS Declaration of Principles, at paragraph 33.

14 WSIS Declaration of Principles, at paragraph 38.

15 Accenture, Markle and the United Nations Development Programme (UNDP) “Creating a Development Dynamic: Final Report of the Digital Opportunity Initiative” (July 2001), at Appendix 3, Case 4-India.

16 Source – National Association of Software and Service Companies (Nasscom), and see Subir Roy, “Boom Ahead for Indian Software” Rediff.com (September 8, 2004).

17 See WIPO “ Intellectual Property on the Internet: A Survey of Issues” at para.393 to 397, and generally in Chapter V.

18 WSIS Declaration of Principles, at paragraph 29-31.

19 Refer to list of WIPO Conferences, Meetings and Seminars.

20 Refer to the website of the WIPO Worldwide Academy.

21 The WIPO Worldwide Academy’s distance learning courses are Internet-based, but content is also available on CD-ROM for those unable to study online. An introductory, an intermediate and two advanced courses on specialized IP subjects are offered through an online platform which also favors learning exchanges between students. Three more advanced courses are being released in 2005. In the case of the advanced courses, students can actively interact with tutors throughout their online studies. Tutors are selected amongst outstanding academics in universities worldwide. While the introductory and the intermediate courses are offered entirely free-of-charge, participation in the advanced courses is subject to the payment of a fee, which is significantly reduced for participants from developing countries. Government officials from all countries are exempted from paying any registration fee. Increasingly, online courses on IP are being integrated in the official curricula of academic institutions, both at graduate and post-graduate levels. The introductory and intermediate courses are offered in multiple languages (Arabic, Chinese, English, French, Portuguese, Russian and Spanish), and the advanced course on Copyright and Related Rights is available in English, French and Spanish. Other advanced courses will be translated upon request.

22 Foster v Mountford (1976) 29 FLR 233. See a discussion in the WIPO Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions/Expressions of Folklore (WIPO Publication No. 785), at p.55. (Adobe PDF). For further background, refer to Kamal Puri, “Protection of Traditional Culture and Folklore.”

23 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)

24 Declaration on the TRIPS Agreement and Public Health, adopted on November 14, 2001.

25 World Health Organization (WHO) Commission on Intellectual Property Rights, Innovation and Public Health was established by the World Health Assembly in 2003:

“…to collect data and proposals from the different actors involved and produce an analysis of intellectual property rights, innovation, and public health, including the question of appropriate funding and incentive mechanisms for the creation of new medicines and other products against diseases that disproportionately affect developing countries…”