SCRIPTed 2009: A Word from WIPO

Slightly delayed live blogging (handwritten notes and laptops) from the SCRIPTed conference in Edinburgh: programme here. All errors are mine. Comments from me in square brackets.

The first keynote speaker is Antony Taubman (Director, Global IP Issues Division, WIPO), with a remarkably upbeat assessment of the field.. While his topic was the resonant ‘Centripetal and Centrifugal Trends in International Governance of IP‘, the focus of the talk was the role of traditional knowledge (TK) in the international IP system. He commenced with some general coments on the relationship between the various institutions (not just the ‘worlds in collision’ of WIPO and the World Trade Organisation, but others such as the World Health Organisation. There are various relationships, such as between ‘old’ and ‘new’ worlds, or approaches based on indigenous rights vs commodification. There have been fundamental shifts in international IP, at the time of TRIPS but happening again now – this is a sign of success in terms of the system. In the case of TK, he traces an evolution of TK as resistance to conventional IP, through a point of pressure for reform, to a true globalisation or reconceptualisation.

The bulk of the presentation was a discussion on what developments in TK mean:

(a) Empirical, e.g. more activity from developing countries, patents based on TK, even the current International Patent Classification having new, more appropriate categories [my thought: this is a very provocative and controversial definition of success]
(b) Jurisprudential, e.g. work on new or improved understanding of concepts in IP law like innovation and person skilled in the art, which can be different in contexts such as patent review
(c) Negotiations, where nations include aspirations re TK as part of their approach to WIP and others
(d) Development – WIPO development agenda, UN Declaration on the Rights of Indigenous People article 31 as a collective right – ‘an international soft norm’ [aren't all norms quite squishy?] – the “trade and” approach (trade and – cultural, environmental, HR, political – TK a good example of this trend). Gives the illustration of NGOs etc opposing particular patents as an assertion of cultural integrity.

A general reflection from Taubman: who ‘owns’ international IP normsetting; what is the benchmark for ‘legitimacy’; debate on collective rights (which these reforms must engage with) is controversial even within international HR law alone – what is the purpose of such normsetting, a ‘global IP law’, administrative convergence, or boundary-setting/dispute settlement? Will we see small, selective regimes (with like-minded countries) before adoption in international mainstream.

Parting shots: choice of forum? how do we like trade and IP law (& ethical idea: fair, legitimate trade/unfair competition – cf Paris Convention article 10bis)? Is legitimacy defined through formal structures or is it just a framework? Are worlds colliding ore ‘are regimes remixing’? [a very appropriate phrase] – an ‘emerging multifaceted multistakeholder galaxy of jurisprudence’, with TK being very useful in bringing a sustainable approach to light.

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