Fordham Report 2014: Multilateral developments

The final session of the first day of this year's Fordham IP Conference attended by this Kat was dedicated to multilateral developments -- a bland and boring title for an important and difficult subject. This session, moderated by Steven J. Metalitz (Mitchell Silberberg & Knupp, LLP, Washington D.C.), was opened by regular Fordham participant Weerawit Weeraworawit (Deputy Secretary General, National Human Rights Commission, Thailand) on "Challenges to Multilateral Treaties". Weerawit reviewed a number of difficulties and issues endemic in multilateral agreements, including lack of enforcement provisions, textual ambiguity, and an absence of interest and political will in seeing them implemented. These challenges have to be tackled in an integrated manner, taking into account the interest of individuals as well as those with vested interests. Further, norm-setting activities are naturally important -- but they are not everything.

Asked about the need for organisations to become more greatly involved in disseminating information concerning multilateral agreements, Weerawit felt that public awareness had to be raised even before a text has been finalised: the public are entitled to know what will affect them, and more dialogue with the public would be a great help. In Thailand, for instance, there was little knowledge concerning the TRIPS Agreement and much information that was imparted is soon forgotten.

Irene Calboli (Visiting Professor, National University of Singapore, Singapore; Marquette University Law School, Milwaukee) spoke next, on "The Trans-Pacific Partnership Agreement and the IP Impact in South East Asia". The TPP now has 12 countries involved in its negotiations, covering a vast geographical spread. No party other than the United States shows the text to anyone, and the United States shows it very selectively to companies; added Irene, she can only see TPP material if it's on WikiLeaks. However, we need to listen more, to become less polarised and to pay attention to what we're doing and why we're doing it -- everyone has to say before accepting or rejecting TPP.

Veteran copyright expert Mihály Ficsor (President, Hungarian Copyright Council; International Legal Consultant, Budapest) then tackled "The WIPO Copyright Agenda After Beijing and Marrakesh – Still a Broadcasters'  Treaty and Then a New “Guided Development Period”?"  This long and complex title could be rebranded "Continuation - Disruption - Consolidation", it seemed. Mihály observed the out-of-date provisions of the Rome Convention of 1961 for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, which fail to address cable retransmissions, for example. Article 14(3) of TRIPS is notable here:

"Broadcasting organizations shall have the right to prohibit the following acts when undertaken without their authorization: the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same. [BUT ...] 

Where Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971)".

This provision is a "pigeon under the sieve" [this relates to a folk tale of a young lady who had to give something to the king and simultaneously not give it: she offered a pigeon under a sieve and, when she handed it to the king and removed the sieve, the pigeon flew away].

"**** ** * *** *****!"

Last to speak was another Fordham regular, Stanford McCoy (Senior Vice President and Regional Policy Director, Motion Picture Association, Brussels), on "Wearing the Target: Reflections of a Former Trade Negotiator". The title of this presentation reflects the fact that Stan recently ended his tenure as the lead IP negotiator at USTR -- and this was billed as his chance to reflect on lessons learned and to assess future opportunities for multilateral, regional, and bilateral IP negotiations. Speaking in praise of transparency, Stan observed that it was much easier to discuss ACTA once its hush-hush text was published.  "Organised publication is better than chaotic leaks". Regarding discussion of multilateral agreements, "We've crossed the line from hyperbole to a real lack of civility that we need to address". This includes death threats and the singing of obscene Christmas carols, it seems.