The World Intellectual Property Organization: A United Nations Success StoryDecember 1997
THE WORLD INTELLECTUAL PROPERTY ORGANIZATION: A UNITED NATIONS SUCCESS STORY
by Gerald J. Mossinghoff and Ralph Oman
Gerald Mossinghoff is senior counsel, Oblon, Spivak, McClelland, Maier & Neustadt, and is a visiting professor of intellectual property law at George Washington University Law School. Ralph Oman is counsel at Dechert Price & Rhoads, and Pravel Professorial Lecturer in Patent and Intellectual Property Law at George Washington University Law School.
NASCUNTUR AB HUMANO INGENIO
OMNIA ARTIS INVENTORUMQUE OPERA *
QUAE OPERA DIGNAM HOMINIBUS VITAM
SAEPIUNT * REIPUBLICAE STUDIO
PERSPICIENDUM EST ARTES INVENTAQUE TUTARI
The United Nations, despite new Secretary General Kofi Annan, continues to draw hostile fire in the United States. The chairman of the Senate Foreign Relations Committee, Senator Jesse Helms of North Carolina, bluntly demands further cuts in the "bloated" UN bureaucracy. Other officials, some largely supportive, wonder about an apparent UN death wish, pointing to the renewed effort to hamstring the Security Council, the refusal to embrace major house cleaning, and the resurgence of an inflammatory rhetoric that pits region against region.
These controversies overshadow a real success story‹the extraordinary achievements of the UN's most effective specialized agency, the World Intellectual Property Organization (WIPO). By working relentlessly to raise the level of protection for patents, copyrights, and trademarks worldwide, the WIPO has done more to harness human creativity for social progress than any other international organization in history. The United States, as a world leader in sectors highly dependent on intellectual property protection including aerospace, publishing, computer technology, industrial electronics, pharmaceuticals, motion pictures, and sound recordings naturally plays an active role in the work of the WIPO. Perhaps more surprising, a growing number of developing countries are key players as well. They have come to realize that they need strong intellectual property protection to promote their own economic development and to preserve their cultural traditions.
Adam Smith taught us that the wealth of nations rested on three pillars: labor, capital, and natural resources. Our generation has added a fourth pillar intellectual property in all of its forms: patents to protect new technology, copyrights to protect literary and artistic works as well as computer software, and trademarks to assure orderly commercial development and consumer protection. New systems of intellectual property law protect, for example, integrated circuits and automated databases. Intellectual property also drives the Global Information Infrastructure including the Internet. In each of these areas, the WIPO has worked with member countries to harmonize their legal regimes and to revise their intellectual property law to meet minimum international standards. The WIPO, which today has more than 160 members, was established as a UN agency only three decades ago, but it traces its roots back more than a century. Today, it administers twenty major intellectual property treaties, and it promotes the adoption of needed new treaties. It also works constantly to update existing treaties to make certain that they remain relevant in an age of fast-paced technological change. These treaties include the 1883 Paris Convention on patents and trademarks and the 1886 Berne convention on copyrights.
In recent years, the WIPO has carried out one of its most urgent goals: providing legal and technical assistance in intellectual property to developing countries and to those previously socialist countries now in transition to a free market economy. Its most recent successes were two important new treaties negotiated in December 1996 in Geneva. A new WIPO Copyright Treaty makes clear that authors get full copyright protection for their music and literary works in the digital environment, especially when those works appear on the Internet. A second new treaty, the WIPO Performances and Phonograms Treaty, increases the level of protection for sound recordings, singers, and musicians worldwide and, again, specifies that the performers and the record companies can control the use of their music in cyberspace.
A brief review of the WlPO's principal areas of activity will highlight its major contributions.
Abraham Lincoln, with his usual elegant phrasing and insight, described the essence of the U.S. patent system in 1859. That system, he stated, "added the fuel of interest to the fire of genius.'' Lincoln noted that our Founding Fathers wrote patent and copyright protection into the U.S. Constitution we were the first country in history to do and he viewed that action as being one of six major steps in the history of human progress, from the stone age to what was then the dawn of the Industrial Revolution.
Some may view Lincoln's characterization as overstated, but the history of the United States is no more accurately recorded than in the vast collection of U.S. patents. From Eli Whitney's cotton gin, patented in 1794 which made King Cotton very profitable and which many historians believe made the Civil War inevitable to the latest inventions in computer technology or biotechnology, the list is seemingly endless: McCormick's reaper, Morse's telegraph, Bell's telephone. Edison's catalogue of 1,000 U.S. patents (including the light bulb, the phonograph, and motion pictures), Eastman's and Land's photographic systems, the Wright brothers' flying machine, Marconi's radio, Colt's revolving-breach pistol, Goddard's liquid fuel rocket, Moyer's production of penicillin, Alvarez's radar, Farnsworth's television, Kilby's and Noyce's integrated circuits, and Stibitz's digital computer to name just a few.
Modern high-technology industries, such as the pharmaceutical and biotechnology industries, simply could not exist without strong and effective patent laws. A World Bank study found that 65 percent of modern pharmaceutical products would not have been developed or introduced in the absence of adequate intellectual property protection. And just as human needs are without borders, so, too, the legal systems that protect the new technology must extend internationally. As a delegate from the Ivory Coast said at a WIPO meeting in Geneva. "The fight against pirates is like the fight against grasshoppers. If you treat your field with insecticide, it does no long term good unless your neighbor sprays, too." So the WIPO plays a critical role in expanding the reach of the patent laws.
More than a century ago, the Paris Convention established three basic principles of international patent law:
- Each member of the convention must treat citizens of the other member states the same as its own citizens. This concept is referred to as the right of national treatment.
- Citizens of members are given one year to file patent applications in other member states after they file in their home country, and the applications are treated as if they were filed all at the same time.
- Patent rights granted by member states must meet minimum standards; they cannot be abridged by member states arbitrarily.
To administer the treaty and facilitate revisions, the Paris Convention set up an administrative body; that group of professionals, headquartered in Geneva, is the direct antecedent of the WIPO. More recently, key members of the WIPO, under the leadership of its secretariat, adopted a Patent Cooperation Treaty to simplify the filing of patent applications in order to achieve patent protection worldwide. The treaty entered into force in 1978. By permitting an inventor to file a single international patent application in one of several ''Receiving Patent Offices of the World" the U.S. Patent Office is such an office, as one would expect an inventor can avoid major duplication of effort at a great reduction in cost. Only after an international search of existing technology by one of the major patent offices of the world does the inventor have to commit the additional resources to acquire patent protection internationally. The WIPO handles the international publication of the application, as well as the necessary communications to designated patent offices around the world.
The savings are enormous. In 1996, less than 48,000 international applications obviated the need for more than 2.6 million individual applications. We are convinced that the world is moving, however slowly, to a universal patent system in which a single patent on an invention will be respected worldwide. The Patent Cooperation Treaty is a major step toward that important goal.
The WlPO's most recent endeavors in the patent area center around the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), which was negotiated in the Uruguay Round of the General Agreement on Tariffs and Trade (GATT). Although that agreement was negotiated outside of the framework of the WIPO, the officials involved expected at the outset that the WIPO given its institutional strength and special expertise would play a major role in its implementation. And indeed that has turned out to be the case. Through a specific memorandum of understanding between the WIPO and the World Trade Organization (the successor to GATT), the WIPO is undertaking a host of activities in support of the agreements reached on TRIPs.
In addition to administering the Paris Convention and the Patent Cooperation Treaty, and coordination of TRIPs, the WIPO is responsible for two other important patent treaties:
- The Budapest Treaty that permits the secure deposit of biotechnology products or micro-organisms for patent purposes.
- The Strasbourg Agreement on International Patent Classification, that harmonizes the international search and retrieval of patents and other technical documentation.
Although there are ancient examples of copyright protection granted by biblical rules and medieval monarchs, the real origin of copyright as we know it today was that great technological leap forward, the printing press. In 1476 less than forty years after Gutenberg's landmark invention the first copyright law was adopted, in Venice. The concept spread throughout Europe, but protected only printers and publishers, not authors. The first law to protect authors' rights was the Statute of Anne, enacted by the English Parliament in 1710.
English colonists took the printing press and the idea of copyright protection across the ocean to America, and after independence, Noah Webster's grammar book provided the actual impetus for American copyright. The future lexicographer, eager to protect his grammar book from piracy, campaigned successfully for laws in several state legislatures. Because of the weakness of the central government under the Articles of Confederation, Webster had no hope of enjoying a national copyright system. By 1786, twelve states had copyright laws. With the adoption of the U.S. Constitution in 1787. Congress became serious about intellectual property, and the first federal copyright law was signed by President Washington in 1790. It protected books, maps, and charts. The first federal copyright certificate was issued to John Barry for The Philadelphia Spelling Book that same year.
In the beginning, most U.S. copyrights went to protect practical works such as spellers, textbooks, manuals, atlases, sermons, and commercial directories. Since that time, copyright protection has been extended to all types of creative works. Music became copyrightable in 1831. The first musical work registered, "The Kentucky Volunteer," by an anonymous "Philadelphia lady," had to be registered as a book in 1794. In 1865, photographs which had come into their own during the Civil War with the battlefield work of Matthew Brady became eligible for copyright protection, followed shortly thereafter by pictorial illustrations. Motion pictures were made possible only after George Eastman's development of transparent gelatin film in 1889. One of the first to be registered (as a series of individual photographs) was made by two employees of Thomas Edison in 1894. It captures on film a sneeze by one of them and is entitled "Fred Ott's Sneeze." The first full-length motion picture, D. W. Griffith's Birth of a Nation, was registered in 1915. Computer programs were first registered in 1960, and video games such as Pac Man and Donkey Kong were copyrighted as audiovisual works beginning in 1980.
Noah Webster's early copyrights protected only his livelihood. Today, copyrighted works drive multibillion dollar industries: the recording industry, the motion picture industry, radio and television, publishing, computer software, and others. The U.S. copyright industries today account for 6 percent of the gross domestic product and the percentage is growing. Last year, these industries contributed $40 billion to U.S. exports.
Growing exports of copyrighted works mean more targets for piracy. The WIPO, both through the treaties it administers and its educational efforts, helps reduce this danger.
The major copyright treaties administered by the WIPO include the following:
- The Berne Convention for the Protection of Literary and Artistic Works, established in 1886 under the leadership of Victor Hugo, has about 130 members. Members are obligated to enact laws affording foreign authors equal treatment with their own citizens, the right of enforcement, and a minimum copyright term of life of the author plus fifty years.
- The Rome Convention fills a gap in Berne by protecting sound recordings, performers of music, and radio and television broadcasters.
- The Geneva Phonograms Convention, adopted in 1971, was an attempt to deal with the growing problem of record and tape piracy.
- The TRIPs Agreement boosts the level of protection for sound recordings and provides an enforcement mechanism.
- As already mentioned, the WIPO Copyright Treaty defines the rights of authors in cyberspace, and the WIPO Performances and Phonograms Treaty upgrades protection for performers and producers of sound recordings, particularly as those recordings are used in a digital environment.
In addition to administering these copyright treaties, the WIPO helps developing countries set up effective copyright regimes. Its Draft Model Law has formed the basis of the copyright laws of many countries, and the WIPO has provided training for the officials in those countries charged with administering copyright law. The WIPO also organizes regional and international symposia to study and discuss such issues as copyright enforcement, TRIPs implementation, and the protection of folklore, a growing concern in developing countries.
Three millennia ago, Indian and Chinese artisans signed their goods before they marketed them beyond their localities. Over 1,000 different pottery marks were used to distinguish different craftsmen at the height of the Roman Empire. And in Europe during the Middle Ages, guild markings were in common use to identify goods and crafts in commerce.
Today, a modern free market economy would not be possible without strong and effective trademark protection. Consumers everywhere rely on trademarks to assure that the goods they buy meet their individual tastes and are of a quality that they can depend upon. The WIPO administers several major treaties dealing with international protection of trademarks, including the Paris Convention, already mentioned, which assures the right of national treatment in trademark registrations, as well as protecting well-known marks from pirating worldwide. Although the United States is a member of the Paris Convention and TRIPs which include important standards for trademark protection it is not currently a party to any international trademark registration system. Nevertheless, the Madrid Agreement concerning International Registration of Marks administered by the WIPO has for more than 100 years facilitated strong international protection of trademarks outside the United States. In 1995, more than 019,000 trademarks were registered through the Madrid Agreement.
To provide an international registration system to which the United States can adhere given its unique legal regime for trademarks an amendment to the Madrid Agreement was negotiated under the auspices of the WIPO in 1989. Legislation to implement this "protocol" in the United States went before Congress in 1994 with the support "in principle" of the Clinton administration and of U.S. trademark owners speaking through the International Trademark Association. The protocol is currently mired in a technical dispute over vote counting that most experts expect to be resolved soon. Concurrent with efforts to bring the Madrid Protocol into force, the WIPO led the efforts to establish a Trademark Law Treaty to eliminate useless government requirements that are burdensome to trademark owners.
A consistent underlying theme of all the WlPO's actions in the trademark area is to facilitate international trade, to provide real savings for trademark owners, and to decrease the complexity of international registration systems.
EDUCATION AND TECHNICAL ASSISTANCE
In all three areas patents, copyrights, and trademarks the WIPO has played a vital role in helping countries set up effective intellectual property regimes. Requests for technical assistance and training have intensified in recent years due to two factors: the breakup of the Soviet Union and the TRIPs agreement. As countries undertake the transition from state-run economies to market-driven ones, they see the necessity of a well-functioning intellectual property infrastructure. And, as countries see the advantages of joining the World Trade Organization, they seek the assistance of the WIPO in bringing their intellectual property regimes up to the required standards.
Since 1967, some 55,000 individuals from 125 countries have participated in training courses organized by the WIPO. Since 1994, the WIPO has also provided training to arbitrators and mediators to resolve international disputes over intellectual property.
Headquartered in Geneva, Switzerland, the WIPO has a staff of some 600 employees, who are nationals of 65 countries. Its director general, Dr. Arpad Bogsch, who has served in that position since 1973, is the driving force behind the organization's remarkable achievements. Born in Budapest, Bogsch escaped Hungary in 1948, with the fall of the democratic government and the arrival of Soviet troops. He became a U.S. citizen and has held senior positions in both the U.S. Copyright Office and in the U.S. Patent and Trademark Office.
Much of the U.S. criticism of the UN stems from the fact that the United States pays a disproportionate percentage of the organization's budget. That is not the case with the WIPO. Despite the fact that as a high-technology leader the United States benefits directly and substantially from strong intellectual property protection, it pays less than 1 percent of the WIPO operating budget.
Strong, worldwide intellectual property protection is of vital interest to all countries, especially the United States. To achieve it, we must act both bilaterally and multilaterally. Our bilateral enforcement actions such as the recent announcement of trade sanctions on Argentina for failure to protect pharmaceutical patents make the headlines. But our support of the WIPO an effective, multilateral organization whose work quietly, steadily promotes respect for intellectual property worldwide will continue to pay far higher, long-term dividends.
Copyright © 1997 American Peace Society. Reprinted with permission. First published in World Affairs, Fall 1997, vol. 160, #2, pages 104-108.
.This elegant admonition, inscribed in marble in the cupola of the headquarters building of the World Intellectual Property Organization in Geneva, Switzerland, was penned by the organization's renowned director general, Arpad Bogsch. In English, it reads:
HUMAN GENIUS IS THE SOURCE OF
ALL WORKS OF ART AND INVENTION *
THESE WORKS ARE THE GUARANTEE
OF A LIFE WORTHY OF MEN * IT IS THE
DUTY OF THE STATE TO ENSURE WITH
DILIGENCE THE PROTECTION OF
THE ARTS AND INVENTIONS
.The most recent amendment of the Paris Convention, to which most major states adhere, was agreed to in Stockholm in 1967.
.The text of which was last revised in Paris in 1971.