Fordham Report 2014: Multilateral and FTA Law & Policy

On a bright but chilly Thursday morning the Fordham Intellectual Property Law Institute and the Emily C. & John E. Hansen Intellectual Property Institute opened their doors to the 22nd Annual Intellectual Property Law & Policy Conference (click here for everything you ever dreamed of knowing about this magical event). In the university's hallowed portals some 550 intellectual property enthusiasts were assembled, to "learn, debate and have fun", to quote the conference's famous slogan.

After the usual welcome formalities and a few words from IP guru and conference genie Hugh Hansen, the first session addressed "Multilateral / FTA Law & Policy". First to speak was Probir J. Mehta (Acting Assistant, U.S. Trade Representative for Intellectual Property and Innovation, Office of the United States Trade Representative, Washington D.C.)  Said Probir, international trade was an important part of the US's economic recovery, and IP/innovation was a key element in fostering investment in this regard. Probir spoke warmly about the Transatlantic Trade and Investment Partnership (TTIP) and the Trans-Pacific Partnership (TPP), both of which -- when you have a job like Probir's only have a few minutes to speak about them -- are not difficult to characterise as panaceas for the ailments of all stakeholders and interested parties. The need for transparency and due process were also recognised.

Pedro Velasco Martins  (Deputy Head of Unit, Intellectual Property and Public Procurement, DG Trade, European Commission, Brussels) spoke next. Unlike Stanford McCoy (Senior Vice President and Regional Policy Director, Motion Picture Association), who has no nightmares, Pedro still wakes up sweating when ACTA invades his dreams.  Pedro, who is negotiating the TTIP from the European side, stressed the need for stakeholder involvement when seeking to reach international trade deals, especially on their IP content, if they are to succeed, citing ACTA as a precedent from which lessons may be drawn. Pedro also spoke of the need to have decent IP laws of your own before you try exporting your legislation to other countries: the EU, conscious of this, has been revising and upgrading much of its own IP law -- the EU had a smart new Customs Regulation and the new trade mark package was well in hand.

Turning to ACTA, Pedro noted: "there is a need to think before engaging in things like this".  This Kat, who does not dissent from this sentiment, wonders where the perceived need to think disappeared to when ACTA was in its earliest stages, recalling that there was a near-unanimous call for precisely such thought from the IP community, who wondered why this call was never apparently heeded. Questioned by Hugh Hansen, Pedro said he preferred bilateral to plurilateral and international negotiations as a means of achieving the desired end of raising IP trading standards.

Wolf Meier-Ewert (Counsellor, Intellectual Property Division, WTO, Geneva) brought us up to speed on the World Trade Organization's activities since the Bali Ministerial Conference in 2013. IP and TRIPS were not exactly top of the agenda then, so there hasn't been any progress in resolving well-known stand-offs and deadlocks, but all live topics remain on the table for future contemplation. Wolf reminded us that the TRIPS compliancy date for least-developed countries has been extended to 2021 and "non-rollback" has been relegated from a binding requirement to a political commitment. He then rapidly summarised all manner of other positions and developments, assuring us that the WTO and the TRIPS Council still provides "much-needed transparency in the absence of substantive progress". Multilateral, plurinational and bilateral negotiations are not mutually exclusive, he concluded.

Michele Woods (Director, Copyright Law Division, World Intellectual Property Organization, Geneva) was the final speaker in this session. Michele, a Fordham regular, opened by talking about the Marrakesh Treaty on facilitating access to copyright-protected works for the blind and the visually impaired -- a triumph for multilateral negotiations, though it took a while to get there. This involved much cooperation between different regional groups, as well as stakeholder input at all stages of the (unusually open and often informal) negotiations. Success on treaties such as this, and the Beijing Treaty on audiovisual performances is encouraging, though these were both narrow and highly-focused subjects; it's not so easy do to the same with broader, more controversial topics.  Topics such as education, libraries and archives and disabilities other than visual ones are also up for discussion.  Finally, Michele asked whether a new treaty is always the necessary aim of WIPO's pre-legislative work: discussion of norms, information-sharing and obtaining a greater understanding are also important gains that can be achieved even if no new law evolves.

The session now opened up for general discussion, opened by Shira Perlmutter (Chief Policy Officer and Director for International Affairs, United States Patent and Trademark Office, Alexandria).  Shira agreed with Michele's comments on progress on narrow, focused topics but added this: both the Marrakesh and Beijing Treaties were directed at benefiting a class of persons for whom there was general sympathy (visually impaired and performers respectively). Further, WIPO is about more than just normative activities -- its success does not depend solely on creating IP treaties.

Next contribution from the audience came from Howard Knopf, who raised a topic that we'd all been wondering about: secrecy of negotiation. According to Probir, there is no issue: "we are transparent on a daily basis", even on the TPP -- even going as far as having a "TPP stakeholder day".  This all sounds very encouraging  but leaves this Kat puzzled. He still hasn't seen anything that purports to be a current text of the Trans-Pacific Partnership and wonders whether perhaps the words "secrecy" and "transparency" have taken on a different meaning with which he is unfamiliar. A further secrecy issue was raised by Annette Kur: that of enforcement of trade agreements, which also tends to be via non-transparent mechanisms. This is apparently "a key part of the architecture of our trade protection agreements" (per Probit Mehta) and are a common feature of bilateral trade agreements (per Pedro Velasco Martins).  So that's all right, then ...