WIPO provides legislative and policy advice under a number of different modalities, in accordance with the specific interests and the requests of Member States in the following ways:
(i) A country that does not have legislation in a particular IP field may request from the WIPO Secretariat a draft law. The draft would take into account specific national considerations, such as that country’s membership in international/regional/bilateral agreements, its level of economic development and specific national IP policy and related public policies, such as innovation, transfer of technology, foreign investment, trade, health, as well as agricultural and industrial policies. The authorities of the requesting country are encouraged to revise the draft as they see fit and to undertake consultations with different stakeholders, namely, IP owners, users, policy makers, legislators and other competent bodies. The Secretariat would then provide comments on the revised text or accompany the authorities throughout the consultations process.
(ii) A country that does not have legislation in a particular IP field may prepare a draft law/act which is submitted to the WIPO Secretariat for comments. Comments would take into account specific national considerations, such as that country’s membership in international/regional/bilateral agreements, its level of economic development and specific national public policies, such as innovation, transfer of technology, foreign investment, trade, health, as well as agricultural and industrial policies. The authorities of the requesting country are encouraged to analyze the comments and to incorporate them as they see fit and to continue consultations as they consider appropriate. The Secretariat would be available for assistance from Geneva or to accompany the authorities during the national consultations.
(iii) A country that already has legislation in a particular IP field may consider revising the law, either because changes in national policies make it advisable to do that or due to new multilateral or bilateral commitments. One of the methods of assistance mentioned above may be considered.
(iv) The WIPO Secretariat also undertakes advisory missions to Member States upon request for bilateral discussions on legislative matters; or receives national officials and policy-makers for discussions at the WIPO headquarters. Discussions on legislative matters are also addressed in the course of numerous other workshops, roundtables, seminars and meetings.
The elaboration of a draft/comments would not, however, constitute the end of WIPO’s assistance, but rather represent one step, although a very important one, in the process of the adoption of the law/act. Assistance would be available throughout the discussions in the national parliament or other competent bodies until approval takes place. Once the law is enacted, the Member State may request further WIPO assistance to achieve its efficient implementation and enforcement. This may include generating awareness in respect of the new legislation as well as training officials, judges and lawyers.
As drafting legislation is a very sensitive area of work by its very nature, an express written request from the national authorities is required for WIPO to start working on such a project.
Legislative and policy advice provided by WIPO is given directly to the authority that requests the assistance; otherwise it is send through the diplomatic representation in Geneva, on a strictly bilateral and confidential basis. Documents containing drafts or comments are kept confidential in WIPO and any reference to the assistance provided will in no circumstances disclose its content. Needless to say that the recipient member States are free to disclose the contents of those documents, for example for consultations with stakeholders or to national experts for second thoughts on the assistance received.
The task of legislative assistance has been distributed to four separate teams, namely:
- Patents, Utility Models, Trade Secret and Integrated Circuits are under the purview of the Patent Law Division, Innovation and Technology Sector
- Copyright and Related Rights are under the purview of the Copyright Law Division, Culture and Creative Industries Sector
- Trademarks, Trade Names, Geographical Indications and Designs are under the purview of the Law and Legislative Advice Division, Brands and Designs Sector
- Building Respect for IP under the purview of the Building Respect for IP Division, Global Issues Sector
WIPOs assistance is consistently based on the multilateral legal framework, which covers mainly 25 international treaties that are under the administration of the WIPO Secretariat. Additionally, in 1995 the WIPO Secretariat received a mandate from the WIPO General Assembly to assist both its own Member States and WTO Members in implementing their obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement). Member States of WIPO and of the WTO were mainly concerned with the timely implementation of their TRIPS obligations, so WIPO’s advice focused on ensuring that national legislation would be in compliance with those obligations, which is still a very importance source of work, since a number of developing countries and LDCs are still in the negotiation process or whether to join the WTO.
Since bilateral and regional legislations are increasingly covering IP matters, WIPO’s legislative assistance also needs to refer to commitments undertaken in the framework of such agreements. On several occasions, a specific request for assistance has been presented to WIPO for the implementation of commitments that derive from negotiated bilateral or regional treaties when it comes to their implementation stage.
Authorities in charge of drafting laws frequently request advice from WIPO regarding how to use available multilateral flexibilities so as to accommodate particular national interests that are specific to their countries. Advice is provided only after careful consideration of the flexibilities in question, of their TRIPS-consistency and of their legal, technical and economic implications. The ultimate decision regarding the choice of legislative options lies exclusively with each individual Member State, of course.
Progressive development of patent laws
The Standing Committee on the Law of Patents (SCP) was created in 1998 to serve as a forum to discuss issues, facilitate coordination and provide guidance concerning the progressive international development of patent law. The Committee is composed of all Member States of WIPO and/or of the Paris Union, and, as observers, certain Member States of the UN non-members of WIPO and/or Paris Union, as well as a number of intergovernmental and non-governmental organizations. In recent years, the Committee has been discussing, in particular, the following topics: (i) exceptions and limitations to patent rights; (ii) quality of patents, including opposition systems; (iii) patents and health; (iv) confidentiality of communications between clients and their patent advisors; and (v) transfer of technology
In addition, WIPO organizes or co-organizes a number of workshops and seminars on various aspects of patent law with the view of strengthening the capacity of stakeholders of its Member States in developing a patent system that promotes innovation and facilitates dissemination and transfer of technology.
Progressive development of trademark laws
The Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) is a forum to discuss issues, facilitate coordination and provide guidance concerning the progressive international development of the law of trademarks, industrial designs and geographical indications, including the harmonization of national laws and procedures. It was established by a decision of the Assemblies of the Member States of WIPO and the Unions administered by WIPO in March, 1998 (document A/32/7, paragraph 93). The SCT submits its recommendations and policies to the WIPO General Assembly for approval. Participation in the SCT is open to all Member States of WIPO or the Paris Union for the Protection of Industrial Property as members. In addition, Member States of the United Nations that are not members of WIPO or the Paris Union, intergovernmental organizations, and non-governmental organizations accredited with observer status at WIPO may participate in the Intergovernmental Committee in an observer capacity. Recent work of the SCT covers the following topics; (i) modes of representation of new types of marks; (ii) opposition procedures; (iii) grounds of refusals for trademarks; (iv) technical and procedural aspects of certification and collective marks; (v) the protection of names of countries; and (vi) industrial design registration formalities.
Progressive development of copyright laws
The Standing Committee on Copyright and Related Rights (SCCR) was set up under the 1998-1999 biennium in order to examine matters of substantive law or of harmonization in the field of copyright and related rights. The Committee is composed of all Member States of WIPO and/or of the Berne Union, and, as observers, certain Member States of the UN that are non-members of WIPO and/or the Berne Union, as well as a number of intergovernmental and non-governmental organizations. By reason of its technical expertise and the breadth of representation of Member States, the Standing Committee is able to advance the discussion on the substance of issues to the point where the main characteristics of the possible solution are clear, and then to formulate recommendations for consideration by the General Assembly or a Diplomatic Conference. The Committee has just concluded work on the Beijing Treaty on Audiovisual Performances, has sent a draft text for a treaty on limitations and exceptions for visually impaired/print disabled persons to a diplomatic conference to be held in June 2013, and is currently engaged in discussing (i) limitations and exceptions regarding libraries and archives, educational and research institutions, and other persons with disabilities, as well as (ii) the protection of broadcasting organizations.
Building respect for intellectual property
In the area of intellectual property enforcement, in the absence of a norm-setting mandate, WIPO contributes to the progress in the international policy dialogue among its Member States through its Advisory Committee on Enforcement. In line with recommendation 45 of the Development Agenda and Strategic Goal VI (“International Cooperation on Building Respect for IP”), WIPO delivers services to assist in the creation of an enabling environment that promotes respect for IP in a sustainable manner and strengthened capacity in Member States for the effective enforcement of IP rights in the interest of social and economic development and consumer protection. This is achieved by providing technical and legislative assistance as well as giving training to the relevant stakeholders following requests from Member States, in addition to the assistance in the progress of international policy dialogue. WIPO also closely cooperates with a large number of intergovernmental and non-governmental organizations to ensure constructive, result-oriented international cooperation, integrating balanced and development-related concerns in joint projects.