Mr. Sisule F. Musungu, President, IQsensato, Geneva prepared a document titled, "The Contribution of, and Costs to Right Holders in Enforcement, Taking into Account Recommendation 45 of the WIPO Development Agenda." The report was published on September 28, 2009 for the Fifth Session of the Advisory Committee on Enforcement to take place in Geneva on November 2-4, 2009.
Some excerpts from the report:
Recommendation 45 of the WIPO Development Agenda provides that IP enforcement should be approached:
“[I]n the context of broader societal interests and especially development-oriented concerns, with a view that “the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations”, in accordance with Article 7 of the TRIPS Agreement.”
IP rights are only valuable to their holders if they are well enforced. The enforcement framework established under the TRIPS Agreement is therefore, as stated in Article 41 of the Agreement, aimed at permitting effective action against any act of infringement of IP rights, including expeditious remedies to prevent first time infringements and remedies to deter second or repeat infringement. In this context, right holders are the primary beneficiaries of the efforts to promote and enforce IP.
Recommendation 45 of the WIPO Development Agenda therefore has a special meaning for right holders. In seeking to ensure that IP enforcement activities result in balanced outcomes for a range of stakeholders, including IP right holders, the Recommendation should be seen favourably by all groups. Indeed, as already noted in this Study, the focus of the Recommendation on Article 7 of the TRIPS Agreement, essentially codifies a position that enjoys broad acceptance including by right holders. In a policy statement released by the ICC with commentary on the Development Agenda Recommendations, the group, while emphasising the importance of preventing and combating IP infringement does not take any specific issue with the Recommendation. The issue for right holders with respect to the Recommendation therefore appears to be one of degrees of emphasis.
Recommendation 45 of the WIPO Development Agenda is concerned with ensuring a balance of interests and outcomes for different stakeholders from IP enforcement efforts. Its main value therefore resides in the fact that it seeks to provide guidance for interrogating the formulation and application of IP enforcement measures and initiatives to determine whether the outcomes will be or are balanced in terms of the interests served and the stakeholders who benefit.
Consequently, as an interpretative framework, Recommendation 45 can only be given practical meaning by looking at specific cases where finding the right balance between different interests and concerns is complex. Some of the challenging cases, which have been examined in this Study, for illustrative purposes, include the application of border measures to goods in transit, the application of provisional measures, the approach to criminal sanctions and abusive enforcement practices. There are no doubt other cases that could benefit from a step by step analysis in the framework of Article 7 of the TRIPS Agreement.
Overall, the focus on balance suggests that the effective implementation of the Recommendation would be beneficial to right holders as well as other stakeholders in WIPO. Considering that right holders are the primary beneficiaries of efforts and initiatives on enforcement, it follows that they have a special stake in Recommendation 45. Going forward, their role in the implementation of the Recommendation could be examined with respect to constructive advocacy, the attention paid to safeguards and addressing abusive enforcement practices in training and capacity building projects that they undertake and with respect to their efforts to ensure that policy-making is based on credible data and research.
Rule 11 of the Federal Rules provides that by presenting to court a pleading, motion or other paper, an attorney or an unrepresented party, certifies that to the best of their knowledge, information and belief, which is formed after reasonable inquiry in the particular circumstances, the pleading, motion or other paper is not being presented, among other things, for “improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” There are clear sanctions for breaching the rule. Similar rules exist in code of professional conduct and rules of procedures in many of the WIPO Member States.
Read the full report here.