© The Author (2008). Published by Oxford University Press. All rights reserved
Editorial |
New leader, new problems
The election of a candidate for the forthcoming vacancy as Director General of the World Intellectual Property Organization (WIPO) provided the backdrop for the preparation of this issue of JIPLP, thereby prompting some reflections on the nature of that role. While this editorial is unlikely to provide Dr Francis Gurry with much food for thought as he ponders his new position, it may nonetheless serve to focus the minds of all of us on the nature of WIPO and its governance.
The Director General is not the potentate of his personal fiefdom. WIPO is a United Nations agency that is subject to much the same checks and balances, accounting and auditing as any comparable body. However, at least two factors appear to create the impression that the Director General has more autonomy in real life than he has in theory.
First, there is an increasing polarization of WIPO member states between those whose prime interest is in the protection of IP rights and those whose main aim is the freeing-up of those same rights so that they may be most beneficially deployed. Wherever polarization takes place to the extent that action and reaction are equal and opposite, there results a stasis, a deadlock that may have the effect of neutralizing the direction which WIPO takes. Where this occurs, the direction taken by the Director General may be one from which it may be difficult to depart.
Secondly, despite its obvious and paramount importance to those who work closely within its intricate legal and commercial structure and who rely upon it for their protection and their profit, IP has not until recently been accorded as high a degree of prominence as other fields of international cooperation: wars, slavery, starvation, health, debt, the environment, and meltdown of the economic system—these and other issues are generally of far more (and more immediate) concern than, say, biopiracy, counterfeiting or the protection of geographical indications. In other words, while the structure of control exists, the will to monitor affairs strictly and to exercise strict control is often lacking.
The Director General is not only not a potentate; he is in many respects the servant of his organization rather than its master. He is answerable for the efficient discharge of duties by a large and diverse body of employees, drawn from a variety of cultures, regions, and educational backgrounds. He must maintain in working order the large and complex machines that process international patent, trade mark, and design applications, meshing in with more than 150 national and regional IP administrations over which he has no control. He must also support and maintain the mechanisms that WIPO has created for the furthering of IP academic and professional training, for the resolution of top-level domain name disputes as well as the arbitration of all species of IP dispute. In doing so, he must address the problems that arise internally where talented, educated, ambitious members of the workforce are jockeying with one another for promotion or preferment.
It is fair to say that the problems faced by Dr Gurry far exceed those of his predecessors. When Dr Bodenhausen was first to lead the organization, respect for his scholarship and status, together with a now long-departed sense that emergent nations knew their place and did not lightly assert their private interests, ensured that the existing world order—if slightly shaken by the notion that derogations from Berne-level copyright might be made in favour of the poorer nations—remained firmly in place. Dr Bogsch, succeeding him, was able to lead effectively, despite occasionally vigorous criticism, through a cunningly exercised blend of charm and power. Dr Idris, until the recent development that led to his decision to step down early, can at least be said to have encouraged new initiatives, and the strengthening of existing ones, by appearing to listen both to the voice of established industry and to the call for development.
But Dr Gurry faces fresh challenges. The early resignation of his predecessor and the circumstances of his narrow election victory suggest that WIPO has become an organization in which staff morale is low, the organization's agenda is the product of a reluctant consensus. Further, the boundaries between its role and that of other UN agencies are less clear than ever, as WIPO's activities and the ever-increasing politico-economic sensitivity of IP issues take it further from its traditionally narrow core objectives.
The problems facing the new Director General are great, and the existence of a problem does not raise a presumption that there is an available solution. This journal nonetheless hopes that Dr Gurry will receive the support and the encouragement not merely of his supporters but also of those who combined in vain to keep him from office. If he succeeds, we are all winners; if he fails, we are all losers.
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