Some Comments on Rulemaking at the World Intellectual Property Organization
Kwakwa, Edward, Duke Journal of Comparative & International Law
An organization's ability to reflect and respond to the changing needs and demands of its constituents by adopting rapid and effective means of rulemaking is one of its most important features. This ability is particularly important in the field of intellectual property. Rules concerning intellectual property have been adopted traditionally by the treaty method. As a result of rapid advances in technology, however, traditional treaty-making processes are now unsuited to the realities of intellectual property law. This poses a challenge to the World Intellectual Property Organization (WIPO), the specialized agency of the United Nations (U.N.) whose mandate is the promotion and protection of intellectual property worldwide. In order to ensure WIPO's continued relevance, viability, and legitimacy in an increasingly globalized world, the Organization must adapt its traditional rulemaking processes by adopting more rapid, transparent, effective, and politically acceptable means of norm creation. This paper discusses the extent to which advances in technology and other developments in related areas have influenced the ways in which WIPO addresses the issue of rulemaking in the field of intellectual property. (1)
II. RULEMAKING IN GENERAL AND IN THE FIELD OF INTELLECTUAL PROPERTY
Since most of my examples are drawn from my present job as Assistant Legal Counsel at WIPO, I will begin this discussion of rulemaking in the intellectual property field with a brief description of WIPO in order to provide the context in which the subsequent discussion takes place.
A. The World Intellectual Property Organization
The Convention Establishing the World Intellectual Property Organization (the WIPO Convention) was signed in 1967, and entered into force in 1970. (2) WIPO's origins pre-date the WIPO Convention to 1883 and 1886, the years in which the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works were adopted. (3) Legal issues surrounding intellectual property were relevant and important during, and even before the 1880s. In 1883, the year in which the Paris Convention was adopted, Johannes Brahms composed his third Symphony, Robert Louis Stevenson wrote Treasure Island, and John and Emily Roebling completed construction of New York's Brooklyn Bridge. (4) All of these works of intellectual property required protection.
WIPO is responsible for promoting the protection of intellectual property throughout the world and for the administration of various multilateral treaties, which address the legal and administrative aspects of intellectual property. The Secretariat of WIPO comprises about 1000 staff members from some 85 countries. The recently approved budget of the Organization for the 2002-2003 biennium is 678.4 million Swiss francs or 410 million U.S. dollars at today's rate of exchange. (5) WIPO is largely self-financing. The Organization generates over eighty-five percent of its income from fees paid by private sector users of the international registration services provided by the WIPO Secretariat. (6) Six percent of the Organization's income is received from its 177 member states, and the remaining nine percent of income comes from the sale of WIPO publications, fees related to the arbitration and mediation services provided by WIPO, and interest earnings. (7)
Membership in WIPO is open to (i) any state member of the Paris or Berne Union; (ii) any other state, provided it is a member of the U.N., any Specialized Agency of the U.N., IAEA, or party to the Statute of the International Court of Justice; and (iii) any state that is invited by the WIPO General Assembly to join the Organization. (8)
B. The Problem with Traditional Rulemaking Processes
International intellectual property regulation and oversight requires a system of norm-creation that is flexible enough to adapt to a dynamic, fast-paced, and technologically driven area of law. …