I. Combating information technology (IT) crimes

 Recent history has shown that, as quickly as new technologies emerge, criminal activities follow. The physical reproduction of protected artistic works and other goods, such as computer software, have remained rather clear-cut problems at large, traditionally among industries and State governments. Within the rapidly expanding fields of intellectual property (IP), however, intangible goods continue to raise questions concerning the very definitions of property, fair use, and criminal activity. Advances in consumer technology have enabled reproduction and redistribution of literary works to be a part of daily use across the globe, changing the scope and nature of enforcing IP rights. Authors and rights holders question the effectiveness of current business models based upon, among other things, the sale of physical goods, and the sole authority to publish and broadcast works. 

Moreover, the boundless nature of information technology (IT) crimes poses especially complex dilemmas for rights holders and countries alike. While computer networks and satellites provide exciting new ways of communicating, enabling collaboration, and delivering profitable information and entertainment, they establish new battlegrounds for rights holders and criminals, creating increasingly difficult environments within which to ensure legitimate data transfer. In return, some attempts to secure these technologies are met with practical and philosophical questions over what constitutes fair use, and how critics might otherwise motivate business and artistic activities.

One of the virtues of the web is its reach: the ability to widely distribute digital works less expensively and faster than ever before. There is great value in being able to communicate to millions of people. The downside is the lack of control creators are able to exert on the subsequent dissemination and use of their work. (1) The ease with which users find and share data continues to expand, boosted by falling technology prices, effective search tools, and peer-to-peer software programs. Businesses and governments are expanding the acceptability and usability of online documents, even preferring them to physical forms. The ease and anonymity with which computers transmit documentation has blurred the lines of acceptable use among industries and consumers alike. Many disputes reduce to three basic questions. What constitutes protected work? What is fair use? When is sharing information a crime? International legal frameworks are attempting to answer these questions and their endless incarnations. 

Unfortunately, fair use law has evolved under a technological regime that rests on the physical reproduction of the work (i.e., print publishing, photocopying, audio tape and vinyl disc recordings, videos, and film). (1) In response, the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) made advancements toward extending the legal principles of patent, trademark and copyright doctrines into the online world. Even newer multilateral agreements attempt to address the increasingly digital nature of intellectual property. Nevertheless, the web opens many new questions of what is legal, appropriate, and fair to copyright owners and consumers. (1) In September 1999, the WIPO International Conference on Electronic Commerce and Intellectual Property set forth the WIPO Digital Agenda, consisting of ten points. (2) Particularly relevant goals included:

1. Broadening the participation of developing countries through the use of WIPOnet and other means for access to IP information, participation in global policy formulation, and opportunities to use their IP assets in eCommerce.

2. Developing appropriate principles with the aim of establishing … rules for determining the circumstances of intellectual property liability of Online Service Providers (OSPs), which are compatible and workable within a framework of general liability rules for OSPs.

3. Promote adjustment of the institutional framework for facilitating the exploitation of intellectual property in the public interest in a global economy and on a global medium through administrative coordination and, where desired by users, the implementation of practical systems in respect of the interoperability and interconnection of electronic copyright management systems and the metadata of such systems, the online licensing of the digital expression of cultural heritage, and the online administration of IP disputes.

These agenda items address areas of concern for rights holders and the potential for aggressive or negligent abuse. 

From the WIPO primer on IP, trademarks are an “important tool in commerce” and “are of essential importance in electronic commerce.”

There is a growing international consensus that trademark protection should extend to the Internet, and that it should be neither less nor more extensive than that which subsists in the physical world. The existing national or regional legal systems should apply, together with the relevant international treaties, but these provisions are of a general nature, applying on a territorial basis, and are not tailored for the borderless world of electronic commerce. (2)

The possibilities for dispute are virtually limitless. Businesses are evaluating the effects of the intangible nature of eCommerce and their particular areas of economic interest. Countries are surveying its effects on the world economy. Moving forward, what multilateral frameworks are needed to ensure the continued security of legitimate IP rights? What areas of the law remain vague, and how does your country want to work with companies and authors to ensure universal application of enforceable laws? Where does your country stand? The answers will prescribe how effectively countries and businesses can work together to ensure the sustainability and profitability of intangible works into the 21st Century, and beyond.

II. Patent protection and access to pharmaceuticals

When discussing access to pharmaceuticals, it is necessary to have a shared understanding of the rationale behind patent protection, the objectives of voluntary and compulsory licensing, and the role essential drugs plays in advancing overall health initiatives. The availability of essential drugs at a reasonable cost is the basis for reducing childhood infectious diseases, maternal and prenatal conditions, and controlling many of the illnesses that plague the poor throughout the world, primarily in developing and least developing countries. (3) However, there exists a tendency to reduce the notion of access to essential medicines as a battle between corporate greed and dying, impoverished citizens worldwide. This view is unfortunate, and unproductive.

From the WIPO primer on IP, we know that patents perform an essential role in stimulating the development of essential drugs … by offering incentives for investing in expensive and long-term research and development of new drugs. (4) Privately funded drug research requires a profit motive to remain a sustainable business. The vast majority of patent protections last for a limited amount of time, and serve to recognize innovation and creativity with material reward. Research for new drugs is costly and uncertain. A common defense of drug prices usually contains a variant of the common notion that “the first pill may cost $30 million to produce and the second pill 22 cents.” (5)

The licensing of specific drugs, either through voluntary or compulsory means, serves to deliver medicines to those for whom the market price is disproportionally high—usually granted during health crises of epidemic proportions in developing countries. The terms of these licensing mechanisms are outlined in the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS) and the Doha Declaration on TRIPS and Public Health, which discuss the fundamental nature of human health. The content of these agreements is the source of much debate. While declaring explicitly that basic human health is paramount to the rights of patent holders, they leave for companies the ability to set differential pricing schemes and declare it illegal to manufacture generic drugs. In short, codified patent protection effectively and accurately implements the law, but, as a result, leaves populations in developing countries increasingly reliant upon the good will or financial stability of patent holders.

Article 4 of the Doha Declaration on TRIPS and Public Health states:

We agree that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO members' right to protect public health and, in particular, to promote access to medicines for all. In this connection, we reaffirm the right of WTO members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose.

How might declaring the ability to protect public health a “right” affect existing frameworks? Are any further agreements among the international community needed to continue balancing the right to patent protection with the right to protect public health?

Still, access to medicines is only part of the solution. To be effective, drug treatments must be coupled with sanitary living conditions and robust health-related infrastructures for delivering long-lasting care. Drugs cannot be delivered if they cannot be stored, or applied. The challenge, then, is in striking a balance between the need for access to essential medicines and sustainable price schemes for drug corporations, while working against external obstacles.

A number of remedies to satisfy seemingly competing goals have emerged, including debt cancellation as a financial resource, and using the World Bank to purchase patents and re-license them.1 How might developing countries seek alternative methods of funding their health care systems?

What does your country believe are the costs and benefits of patent protection, as it exists today? What are the costs and benefits of the current international agreements on access to essential medicines? How can drug companies best provide for those in need while maintaining a profitable product? What role do public funds play in the development of drugs? What role do they play in the purchase of these drugs? What specific program changes, if any, does your country propose?
 

III. Genetic modification and intellectual property rights

 The emergence of genetic modification (GM) has been characterized primarily as a dispute over finished goods and labeling. The issues related to genetically modified organisms (GMOs), however, span the entire production process, and include topics from biodiversity in agriculture, to the patenting of indigenous plants, to the cloning of wildlife. Some of the primary concerns relating to international agreements on GMOs rest on the uncertain nature of scientific progress, especially because the results of ecological change, if present, may be delayed by years and confounded by numerous other factors.

Internationally, scientists are using GM to better understand the genetic make up of humans, plants and animals. This increased understanding is being used … in medical research to look for cures for diseases such as multiple sclerosis and cystic fibrosis, and in agricultural research to develop animal medicines and vaccines, and crops with new traits such as herbicide resistance or the ability to produce their own insecticide. (6) With the rise of modern biotechnology, genetic resources have taken on increasing economic, scientific and commercial value for a wide range of stakeholders. (7)

With the value of these discoveries and moficiations on the rise, WIPO and related agencies are increasingly involved in administering patents to new technologies, methodologies, and plant and wildlife varieties. One of the first advances in this area came at the International Convention for the Protection of New Varieties of Plants by a Diplomatic Conference in Paris on December 2, 1961 … [which recognized] the intellectual property (IP) rights of plant breeders in their varieties on an international basis. The UPOV Convention provides a sui generis form of IP protection, which has been specifically adapted for the process of plant breeding… (8)

Wide-ranging concerns over GMOs abound, including not only practical questions of health and safety, but also the ethics and “proper” role of science. In all topic areas, competing ethics lie beneath and among differing views on how to best move forward. Three primary areas of dispute include: food safety, biodiversity, and economic concerns. 

1. Trade-related issues surrounding food labeling other food-related products have cropped up among various countries. Barring fears that these disputes are non-trade barriers, how might potential risks be discovered and weighed against potential benefits? More broadly, how safe is food grown from and/or created from GMOs?

2. Eight crop varieties dominate commercial GM crop production, and four of them (soybeans, cotton, canola/oilseed rape and maize) account for 99% of all GM crops. In 2001, GM varieties made up 51% of the world's soybeans, 20% of cotton, 12% of canola/oilseed rape, and 9% of maize. (6) Recognizing that GM crops are patented products and usually constitute a single particular strain of crop, what effects might a reduction in the biodiversity among plants have on the environment? How might GM and “natural” crops respond differently to changes or problems in the environment?

3. The benefits of GMOs are well-known. Products include better medicines and vaccines, more productive crops resistant to pesticides. What effects might these products have on the economy? What are the costs and benefits to the commercialization of such products as agricultural crops? How does the securing of patents accelerate and/or slow progress in relevant fields of scientific discovery?

WIPO’s role in these international discussions continues to evolve. In addition to the topics already mentioned, the body remains concerned with access to genetic resources and benefit sharing, protection of traditional knowledge, whether or not associated with those resources, and protection of expressions of folklore. (7)

Multilateral talks reflect the diversity of opinion on the subject. Some say the potential benefits are so important that we cannot ignore them. Others say that we should wait until we know more about the technology before allowing releases. Many people consider the potential risks to be too great to allow release, but will support laboratory research. Others say that all genetic modification goes too far in “tampering with nature” and should be completely stopped. (9) The cloning of cells and adult organisms typifies the many views of scientific progress.

Ultimately, the challenge facing the world community today is how to balance the benefits of and desire for advances in science, agriculture, and wildlife, with the uncertain environmental and economic effects of using genetic modification and related scientific techniques. What specific concerns does your country hold, if any? What social, economic, or moral implications does your country find applicable to GM? What is at stake? How might GMOs be of benefit to your country?

References:

1. http://digitalenterprise.org/ip/ip.html
2. http://ecommerce.wipo.int/primer/primer.html
3. http://www.cpsa-acsp.ca/paper-2003/cohen-illingworth.pdf
4. http://www.wipo.org/about-ip/en/
studies/publications/health_care.htm
5. http://www.thespectrum.com/news/stories/20021104/
topstories/298949.html
6. http://www.gm.govt.nz/about-global.shtml
7. http://www.wipo.org/about-ip/en/studies/
publications/genetic_resources.htm
8. http://www.upov.int/en/about/upov_system.htm
9. http://www.gm.govt.nz/about.shtml

Suggested resources for topic I:
Berne Convention for the Protection of Literary and Artistic Works 
Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite 
Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms 
Madrid Agreement for the Repression of False and Deceptive Indications of Source on Goods 
Nairobi Treaty on the Protection of the Olympic Symbol 
Paris Convention for the Protection of Industrial Property 
Patent Cooperation Treaty (PCT) 
Patent Law Treaty (PLT) 
Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations 
Trademark Law Treaty 
WIPO Copyright Treaty (WCT) 
WIPO Performances and Phonograms Treaty (WPPT)

Suggested resources for topic II:
United Nations Universal Declaration of Human Rights
Trade-Related Aspects of Intellectual Property Agreement (TRIPS)
Doha Declaration on TRIPS and Public Health

Suggested resources for topic III:
Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure
Contracting Parties to the International Convention for the Protection of New Varieties of Plants (UPOV)