World Intellectual Property Organization (WIPO)
by Axel Metzger
1. History and development of WIPO
WIPO (or OMPI, Organisation Mondiale de la Propriété Intellectuelle or Organización Mundial de la Propiedad Intelectual) was established in 1967 by the Convention establishing the World Intellectual Property Organization. WIPO’s headquarters are in Geneva. The main objective of WIPO is ‘to promote the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization’ (Art 3 WIPO Convention). WIPO performs the administrative tasks of the Paris Union, the special unions established in relation with that Union and the Berne Union. The ‘Paris Union’ was established by the Paris Convention for the Protection of Industrial Property, last revised in 1967 in Stockholm (Paris Convention), the ‘Berne Union’ by the Berne Convention for the Protection of Literary and Artistic Works, last revised in 1971 in Paris (Berne Convention). Both Unions have kept their status as international organizations but have delegated their administrative tasks to WIPO. In 1974 WIPO became a specialized agency of the United Nations in the sense of Art 57 of the UN Charter. Since its establishment, various treaties and recommendations regarding intellectual and industrial property have been negotiated under the auspices of WIPO (see 3. below).
2. Members and structure
Among the founding members of WIPO were all of the then Member States of the European Union, the United States, Japan and Switzerland. Today, WIPO has 184 Member States including China and the Russian Federation. Membership is open to all members of the Paris Union, the Berne Union, one of the special unions established on the basis of Art 19 Paris Convention or parties to any other international agreement designed to promote the protection of intellectual property whose administration is assumed by WIPO. In addition, members of the United Nations, its specialized agencies and parties to the Statute of the International Court of Justice may become members of WIPO. Furthermore, the General Assembly of WIPO may invite states to become members. The possibility of becoming a member of WIPO without being a member of one of the Unions aims at opening the organization to those states which are not willing to adopt the high level of protection provided by the conventions establishing the Unions. According to Art 5 WIPO Convention, only states may become a member of the organization. Therefore, the membership of the European Union is not possible under the current regime.
The organizational structure of WIPO is largely in line with the typical structure of international organizations but with the special feature of being closely interrelated with the Paris and Berne Unions. Article 6 WIPO Convention provides rules for the composition and the functions of the ‘General Assembly’, in which only member states being at the same time members of at least one of the Unions are represented. Besides the General Assembly, the WIPO Convention has established a ‘Conference’ (Art 7) in which all members are represented regardless of whether or not they are members of any Union. The central aspects of WIPO’s work are delegated to the General Assembly, especially the appointment of the Director General, whereas the ‘Conference’ is in charge of discussing matters of general interest. The functions of a board of the organization are fulfilled by the ‘coordination committee’ (Art 8), which is composed of representatives of those WIPO member states that are at the same time members of the Executive Committee of the Paris Union or the Executive Committee of the Berne Union. The ‘coordination committee’ is in charge of nominating a candidate for appointment as Director General. The Director General directs the ‘international office’, serves as the chief executive of the organization and represents it (Art 9).
3. Treaties and recommendations
Currently WIPO administers 24 international treaties in the field of intellectual property. Regarding industrial property, besides the Paris Convention, the Madrid Agreement Concerning the International Registration of Marks, last revised in 1967, the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks of 1989 and the Patent Cooperation Treaty of 1970 deserve special attention because they have established significant improvements for the international registration of patents (patent law) and trade marks (trade mark law). For copyright and neighbouring rights, the Berne Convention and the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations of 1961 are of primary importance, the latter because it recognized the principle of national treatment and certain minimum standards of protection for the most important neighbouring rights (related rights (copyright)). However, the United States and many other countries have not signed the Rome Convention, and this led to significant gaps in the protection of performing artists, producers of phonograms and broadcasting organizations. This gap has been closed partially by the WIPO Performances and Phonograms Treaty of 1996 (WPPT), which has been signed by more than 80 states to date. Also in 1996, the WIPO Copyright Treaty (WCT) was adopted. The WCT supplements the Berne Convention with additional minimum rights that member states must grant to the nationals or residents of other member states. Article 11 obliges member states to provide adequate legal protection against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights. The WCT has been ratified by more than 80 states. Different from the older Conventions administered by WIPO, the WPPT and the WCT are open for the membership of the European Union (Art 26(3) WPPT, Art 17(3) WCT). The European Union has signed both treaties.
By contrast, no agreement could be reached during the 1996 diplomatic conference on the European initiative to implement an additional instrument for the protection of database producers (database protection). Other initiatives for conventions on the protection of audiovisual performances and broadcasting organizations have not been successful so far. Also, it is unclear whether the negotiations regarding an instrument for the protection of traditional knowledge, genetic resources and traditional cultural expressions or folklore will finally be successful. Even though the subject matters discussed at WIPO are rather diverse, the fundamental conflict of interests between the rightholders coming from the industrial states on one side and the less developed states and NGOs representing the user’s perspective on the other, is clearly visible as the main impediment in all current negotiations.
Besides the classic instrument of the treaty, WIPO has since the late 1990s been successfully using ‘recommendations’ to promote the protection of intellectual property through cooperation among states. Up to this point, three joint recommendations of WIPO and the Paris Union regarding the law of trademarks have been published: the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks of 1999, the Joint Recommendation Concerning Trademark Licenses of 2000 and the Joint Recommendation Concerning the Protection of Marks, and Other Industrial Property Rights in Signs, on the Internet of 2001.
4. WIPO Arbitration and Mediation Center
In 1994, WIPO established the Arbitration and Mediation Center, which provides several specialized alternative dispute resolution procedures for intellectual property matters. The most successful of these procedural options is the WIPO Domain Name Dispute Resolution, which is utilized in more than 2,000 cases per year.
5. WIPO and the World Trade Organization
The international protection of intellectual property was fortified significantly by the establishment of the World Trade Organization (WTO) in 1994. The WTO Treaty comprises as an annex the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). According to Arts 2 and 9 of TRIPS, the members of the WTO must comply with the requirements of the Paris and Berne Conventions with the exception of author’s moral rights, which are expressly excluded (Art 9(1) TRIPS). TRIPS contains standards of protection that go beyond the protection granted under the Berne Convention (‘Berne plus’). The integration of intellectual property in the WTO system has increased the number of member states of the conventions administered by WIPO. The benefits of the WTO rules on free trade have set an additional incentive to enter into the international protection scheme of TRIPS and the several treaties administered by WIPO. Another added value of TRIPS in respect of the previous conventions is the chapter on enforcement of intellectual property (intellectual property (enforcement)), Arts 41 ff TRIPS, and the availability of the WTO dispute resolution procedure. Regarding these institutional advantages, one may expect WTO to take a leading position in the further development of international protection of intellectual property. The European Union is member to the WTO. As a consequence, the Paris and Berne Conventions are a part of the law of the European Union and may be interpreted authoritatively by the ECJ.
Paul Katzenberger, ‘TRIPS und das Urheberrecht’  Gewerblicher Rechtsschutz und Urheberrecht, Internationaler Teil 447; Silke von Lewinski, ‘Die diplomatische Konferenz der WIPO 1996 zum Urheberrecht und zu den verwandten Schutzrechten’  Gewerblicher Rechtsschutz und Urheberrecht, Internationaler Teil 667; Hans Ballreich and Anja Meyer, ‘World Intellectual Property Organization’ in Encyclopedia of Public International Law, vol 4 (2000); Torsten Bettinger (eds), Domain Name Law and Practice (2005); Sam Ricketson and Jane C Ginsburg, International Copyright and Neighbouring Rights (2nd edn, 2006); Silke von Lewinski and Jörg Reinbothe, The WIPO Treaties 1996 (2007); Christopher May, The World Intellectual Property Organization (2007); Silke von Lewinski, International Copyright Law and Policy (2008); Paul Goldstein and Bernt Hugenholtz, International Copyright—Principles, Law, and Practice (2nd edn, 2010).