Despite facing challenges, the WIPO is forging ahead with a much better track record than ever before in 2016. Nevertheless, the global IP regime has so far drawn more criticisms than accolades. Rising concerns among the NGOs, civil society organisations and public intellectuals about the grand designs of the business corporations inbuilt in the successive IP policies of the WIPO and the WTO must be reviewed in the larger interests of the poorest of the poor
The World Intellectual Property Organisation (WIPO) was established on July 14, 1967, at Stockholm. But the historic “WIPO Convention” came into force only in 1970. It had a mandate from its member-states to promote the protection of the Intellectual Property (IP) across the world, with active cooperation among the States and in collaboration with other international organisations. The WIPO is the key UN agency to bring forth an IP culture globally with an effective thrust on capacity building in the field particularly among the developing nations. Though it is yet to cross the half-century mark, the WIPO has grown into a massive organisation over the years.
To situate the WIPO into the global dynamics of the IP, one needs to understand its leadership, mandate, institutional design and evolution. It must be noted here that when the WIPO joined the UN family in 1974, its original mandate was modified and subsequently complemented with a much broader goal. Article 1 of the agreement establishing WIPO’s relationship with the UN gave the WIPO a far larger purpose, “…promoting creative intellectual activity… facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development”. On this note, the WIPO, during the terms of his four successive Director Generals, starting from George Bodenhausen (1970-1973), Arpad Bogsch (1973-1997), Kamil Idris (1997-2008), and to Francis Gurry (2008-till date), has seen the organisation evolving from a special agency of the UN into a mammoth global governance mechanism in the field of the IP. With Bogsch, the WIPO had witnessed its historical transition period when the IP mantle was simply passed on to the World Trade Organization (WTO) under one of the most controversial treaty, known as the Trade-Related Aspects of the Intellectual Property Rights (TRIPS) in 1995. Indeed, the WTO-TRIPS agreement had redefined the contours of the global IP system like never before. The TRIPS initiated a system which tried to streamline the varied rules and regulations of the national IP systems to a uniform mechanism-popularly referred to it as “one size fits all” system. However, it encountered massive resistance from developing nations and hundreds of non-governmental organisations and civil society organisations across the world. The resistance built around the world against the TRIPS, particularly its provisions related to pharmaceutical products, had become the focal point of the entire movement.
The bringing of the IP to the WTO platform under the garb of protecting the trade interests had the blessings of the invisible hand of the big corporate conglomerates of the US, the European Union and Japan. Precisely, America’s sacrosanct business interests were broadly premised on the emerging market economy brought by the waves of globalisation. Besides, its major export market was largely dominated by the trade in high technology in the 20th and 21st centuries. To achieve the maximum leverage of the information and communication technology-related business interest, America and its European allies, simply wanted to avoid a platform like the WIPO, which was dominated by the social concerns and development debates of the developing nations. Thus it was expected by these nations and their corporate giants that the switchover to the WTO could give them the much needed respite from the obstructionist-developing nations. Beyond this, pushing the IP matters to the WTO court was also projected as a move to expand the scope of the market-oriented neoliberal economic rules into the new domains for reaping maximum benefits. However, the WTO was given an image of an ‘all-encompassing organisation’ unlike the WIPO so as to wrap up the interests of the advanced nations much better in the field of the IP. Given the situation, the developing countries had very little choice to avoid the upcoming global IP regime. Many of them were badly lured by rich benefits of being a part of the largest markets in the world (probably with fewer hassles) and hope of receiving massive foreign direct investment followed by technology transfer in the research and development sector. Needless to say, these countries were also facing the coercive and crippling sanctions from the US, masterminded by the Office of the US Trade Representative (USTR). Further, an impression was aired that if a uniform and comprehensive multilateral global IP regime could be brought, the developing nations may get respite from the US-led pressures on bilateral fronts. Oh! What a magic wand was put in place to mobilise the support of the developing countries. It was no less than coming of a true wave of imperialism, but of course in a unique form, setting and context.
Despite facing challenges, the WIPO is forging ahead with a much better track record than ever before in 2016. Since the last WIPO Assemblies took place in October 2015, the organisation has made considerable progress. As WIPO Director General Francis Gurry says, “The organisation ended the 2014-15 biennium with very positive financial results and we have been able to continue on that basis during the first nine months of the current 2015-16 biennium; the global IP systems continue to expand…”
This speaks volumes about how the WIPO has moved ahead in spreading consciousness and creating a better IP system on the new system heralded by the TRIPS agreement. The financial condition of the UN body continues to be sound as it ended with a surplus budget at the end of the 2014-15 biennium. There was an increase of 14 per cent income over the last biennium. It has been observed that major income of the WIPO has flown from the Patent Cooperation Treaty (PCT) and the Madrid System for the International Registration of Marks (The Madrid System). It is good news for public, particularly for the IP applicants and the enterprises, that despite having constant fee levels for the PCT, the Madrid System and the Hague System for the International Registration of Designs (The Hague System) for the last eight years, the WIPO has achieved this remarkable growth trajectory. Though it would be difficult to predict the financial situation of the 2016-17 biennium, Gurry is of the opinion that WIPO will yield an overall surplus. The current biennium will see a significant change in its financial management system. Currently the WIPO’s reserves and treasury are managed by the deposits through the Swiss federal authorities. In fact, this system has served the requirements of the organisation quite well till now. But, with the new investment policy as approved by the member-states of the WIPO, it has decided to shift to a new system. This upcoming arrangement will lead to a situation wherein its reserves and treasury will eventually be exposed to the market. However, this will have the risk of having its reserves and treasury impacted by fluctuations in the market. For now, no one knows, what will be the possible outcome of the fresh financial system, but looking at the track record of the WIPO, it is likely to stay unharmed.
The PCT system which remains at the heart of the WIPO’s revenue is growing steadily. By 2015, the PCT system has registered 151 countries as Contracting Parties. Even in the Gulf region, the PCT is considerably doing fine. With the inclusion of Kuwait in the PCT, the entire six members of the Gulf Cooperation Council have joined the treaty. The growth in international PCT applications was 1.7 per cent in 2015 which amounts to a total of 2,18,000 applications. But for 2016, the number of international applications may be on the higher side. The interesting part of the PCT applications’ trend in 2015 was that the geographical distribution reflected a growing share of Asia in comparison to that of North America and Europe. The 2016 Report of the WIPO Director General states, “The geographical composition of the PCT application continues to evolve in favour of Asia, with 43.5 per cent of all applications coming from Asia, compared to 27.6 per cent from North America and 27 per cent from Europe. The United States of America is the largest individual filing country, followed by Japan, China, Germany and the Republic of South Korea.”
This largely shows how patenting has become popular in this part of the world, particularly in India and China. Alongside, the International Bureau of the WIPO comes with much better news — the ePCT system has proliferated quite well in around 50 national and regional offices where the applicants can easily file their applications. This will help in improving the global patent filing record and can encourage more applicants to come forward. Digitalisation of the application process may bring more income to the WIPO as well. The membership of the Madrid System has increased but at a slower pace. It now covers 113 countries, almost representing all the regions of the world. In fact, the Madrid System is completing its 125th anniversary in 2016 and a major thrust is on improving the IT environment for the same. The Hague System has also continuously expanded, but not like the way the PCT has grown. Coming to the dispute resolution in IP cases, the WIPO Arbitration and Mediation Centre has progressed considerably with cost effective solutions across the world.
The most striking achievement of the WIPO this year is no other than bringing the historic Marrakesh Treaty into action in September. This will move the much awaited “Books for the Blind” project forward. It will definitely give a new edge to millions of print-disabled people for exploiting the new sources of knowledge and information in a format they can do. It sends signal for a huge revolution in the world of visually impaired. Thus, the WIPO has consistently worked hard to make the IP a global subject, by engaging more and more nations into its various chapters.
Nevertheless, the global IP regime has so far drawn more criticisms than accolades. Rising concerns among the NGOs, civil society organisations and public intellectuals about the grand designs of the business corporations inbuilt in the successive IP policies of the WIPO and the WTO must be reviewed in the larger interests of the poorest of the poor. The IP must come out of the threshold of the privileged few so that the creators and the innovators can share their knowledge for the benefit of all. The convergence of the WIPO and the WTO should no more be used as another trap to exploit the resources and the markets, particularly, the widely untapped reservoirs of traditional knowledge and the geographical indications (GIs) across Asia and Africa. With the coming of the TRIPS and the TRIPS-plus, and many other mega regional trade agreements, which are on their way to be launched, the pressure on the developing and the least developed countries (lDCs) are on the rise. This pressure has now been manifested in the form of regime shifting, forum shopping, regime tension, regime proliferation and counter-regime dynamics that are fast becoming the salient features of the new edifice of the global IP regime. But then where has the noble ideals of the WIPO goneIJ Will there be a respite for the developing and the lDCsIJ We must not give up!
(The writer is Senior Editor, The Pioneer)