The Gurry Controversy – WIPO Is Not an Arm of the US Government!

I am a fan of Gene Quinn’s IP Watchdog blog (which, incidentally, you can vote for in this year’s ABA Blawg 100 listings, where it has been named in the ‘Hall of Fame’).  One of the things I appreciate about Gene’s approach to blogging is that he is not afraid to speak his mind, particularly on controversial issues.  And while I often agree with what he has to say, sometimes I do not.  This is one of those occasions.

In two recent IP Watchdog articles, Gene has gone on the attack against World Intellectual Property Organization (WIPO) Director General Francis Gurry (see DNA Scandal Raises Pressure on WIPO Director General and WIPO Watch: Is there a conspiracy against Francis Gurry?)  Now, Gurry is an Australian, but it is not my intention here to engage in some kind of US versus Australia slanging match.  I am more interested in the issues that have motivated such strong views on IP Watchdog, independently of Francis Gurry’s nationality.

The recent articles have been occasioned by the fact that Gurry’s current term as Director General expires in 2014.  Along with three other candidates – Mr Geoffrey Onyeama (Nigeria), Mr Jüri Seilenthal (Estonia), and Mr Alfredo Suescum (Panama) – he has renominated to continue in the role for a further six years.  There are, however, some people – principally, as far as I can determine, in the US – who do not consider Gurry to be a suitable candidate.

What Did Francis Gurry (Allegedly) Do?

There are three allegations that are being levelled against Gurry:

1. that he ‘secretly’ ran a program to ship ‘high-end computers’ and other electronic equipment to North Korea and Iran;
2. that he made ‘secret agreements’ to open satellite offices of WIPO in Russia and China; and
3. that he was involved in a ‘scheme to illegally acquire DNA samples of WIPO employees’ as part of an investigation by Swiss authorities into anonymous letters he had received prior to his election as Director General.

The first two of these are allegations only insofar as the accusations of ‘secrecy’ imply some sort of nefarious intent.  There is no question that WIPO did ship computer equipment to North Korea and Iran, as part of assistance programs to enable those countries to upgrade their technical capabilities (such as patent databases) in relation to IP rights protection.  In both cases, subsequent UN Sanctions Committee investigations found that the programs did not violate any UN Security Council resolutions (see WIPO media releases Decision of UN Sanctions Committee on WIPO’s Technical Assistance to DPRK and Decision of UN Sanctions Committee on WIPO’s Technical Assistance to Islamic Republic of Iran).  Plans for regional offices in Russia and China were revealed in the proposed budget put to WIPO Member States in October (which they refused to vote on as a result).

The third allegation is clearly a case of muckraking in an effort to undermine Gurry’s candidacy.  Were it not for the highly politically-charged matters involving North Korea, Iran, Russia and China, it would be difficult to see why this six-year-old ‘scandal’ should suddenly be resurfacing right now.  While much smoke is being generated, there is little sign of any fire as yet.  And since there is undoubtedly potential for defamation in amplifying the accusations (and because I am not as ‘fearless’ as Gene Quinn, who is no stranger to lawsuits over his writings) I do not intend to say any more on the so-called ‘DNA scandal’, until and unless some solid evidence comes to light.

There is no doubt that WIPO’s actions in shipping high-tech items to North Korea and Iran intensely annoyed the United States.  Both are members of President George W Bush’s ‘Axis of Evil’, and while various UN Security Council Resolutions ‘call upon’ Member States to limit trade in certain goods and services with both countries (other than for humanitarian and developmental purposes), US law goes further than this.  Indeed, there does not seem to be much dispute that if a US-based individual or organisation had provided the same goods and installation services to North Korea or Iran, they would have been guilty of a serious offence under US law.

Gurry upset the US further when he subsequently refused to cooperate with a House Foreign Affairs Committee investigation into the North Korean and Iranian programs.

WIPO – Role and Membership

The fact is, however, that WIPO is not an arm of the US government, and its mission is not to enforce US foreign policy or to further US interests in the world.  Its website informs us that…

WIPO is the global forum for intellectual property services, policy, cooperation and information. We are a self-funding agency of the United Nations, with 186 member states.

Our mission is to lead the development of a balanced and effective international intellectual property (IP) system that enables innovation and creativity for the benefit of all. Our mandate, governing bodies and procedures are set out in the WIPO Convention, which established WIPO in 1967.

The 186 member states include the Islamic Republic of Iran, the Democratic People’s Republic of Korea (bearing in mind that any country which feels the need to include ‘democratic’ in its name usually is not), China and the Russian Federation. 

All four countries are also among the (currently) 148 members of the Patent Cooperation Treaty (PCT).  Many interesting statistics on the PCT can be found on WIPO’s website.  For example, both China and Russia are among the 17 PCT members which are authorised to act as International Searching Authorities (ISAs) and International Preliminary Examining Authorities (IPEAs). 

Contributions of China and Russia

From 2012, US-based applicants were able to nominate the Russian Patent Office (Rospatent) as ISA.  A total of 1368 such applications nominated Rospatent.  This number is small compared with the number of US-originating applications nominating the USPTO (15,179), the European Patent Office (18,591), the (South) Korean Intellectual Property Office (14,821).  But it is a larger number than nominated IP Australia (314), although this is partly because the agreement between the US and Australia allows the Australian office to conduct searches in respect of only a limited range of technologies.

Significantly, however, Rospatent conducted a total of 2629 international searches in 2012, so around half of the searching work it contributed to the PCT system was on behalf of US-based applicants.

By comparison, China conducted 20,716 international searches in 2012, 18,266 of which were for Chinese applicants.

In 2011, 17,324 US-originating applications entered the National Phase in China, while 3,040 did so in Russia.  It is therefore clear that US companies are taking advantage of the opportunities available to protect their innovations in these countries.

Russia and China both have growing patent offices, which contribute significantly to the international patent system (which benefits US nationals, as well as those of other countries).  These contributions are only going to grow.  So whatever the United States’ feelings about these countries may be, as a matter of its own foreign policy, there is absolutely no good reason why they should not be considered as locations for future WIPO offices.

A ‘Helping Hand’ for Iran and North Korea?

As for assistance to North Korea and Iran, there is no doubt that this was always going to be controversial, and the failure of the WIPO executive to consult with Member States was (at least with the benefit of hindsight) an error that the organisation has promised to address in future.

In 2012, just two PCT applications originated in Iran, while a grand total of three came out of North Korea.  Since 2007, neither country has produced any more than seven PCT applications in a calendar year.  These are among the lowest figures in the world, and you have to look to the poorest and smallest nations to find comparable numbers.

Things are even worse when you look to the rate of national filings in, and from, both countries.  In 2011, no PCT applications entered the national phase in either country.  The same year, international applications originating in Iran resulted in only eight national phase entries elsewhere, while North Korea performed even worse with just seven.

By any measure, these are countries whose participation in the international IP system is utterly negligible.  But they are members of both WIPO and the PCT, and it is clearly within WIPO’s remit to try to find way to assist them in increasing their participation, whatever the United States’ feelings on the matter might be or, indeed, those of other individual member states.

Conclusion

Just to be absolutely clear, I am no supporter of the regimes in either Iran or North Korea.  I note that there appears to have been some thawing of international relations under the new government in Iran, and it is my sincere hope that this is real, and that it results in benefits to regional stability, and to the country’s people.  As for North Korea, I am personally far more concerned about its utterly appalling record of human rights abuses than its posturing and sabre-rattling (which is, of course, not to say that the two are unrelated).  I have no problem branding the country a ‘rogue state’, and were it not for the fact that sanctions harm ordinary people already suffering under an oppressive regime, I would want to see the international community take an even harder line.

But that is not the world we live in.  WIPO has a mission and, within the restrictions imposed by UN Security Council resolutions (not the laws of any single member state), it is entitled and expected to pursue that mission.  In doing so, it is inevitable that it will make decisions and take actions that ‘we’, as onlooking individuals and individual nations, might not agree with.  I personally doubt that the assistance provided to Iran and North Korea will make any difference to their level of participation in the international IP system – at least, not without some far more significant political and social change.

However, it seems fairly clear to me that the Members of US Congress who are criticising Francis Gurry, and branding him as an unsuitable candidate for the position of WIPO Director General, are playing to a domestic audience.  I can fully understand why US citizens (including Gene Quinn), as well as the US media and US politicians, might take issue with the actions of a UN body which they see as being contrary to US national interests (however trivial just over $50,000 of computer equipment is in the scheme of things). 

But this is not all about the US.  And, as I have already said, WIPO is not an arm of the US government.  Nor, to the extent that it operates outside the US, is it in any way bound by US national laws – any more than it is bound by Iranian or North Korean laws which restrict the activities of residents of those countries domestically and internationally.  And that, surely, is a good thing!

Tags: International treaties, News, Politics