WIPO, The Paris Convention from 1883 to 1983 (Geneva: WIPO 1983, excerpts).
Background
The 1883 Paris Convention for the Protection of Industrial Property, preceding the Berne Convention for the Protection of Literary and Artistic Works, lays the foundation of the protection of an array of categories of rights, namely “patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin and the repression of unfair competition”. New types of innovations or creations which do not fit within the scope of the Paris Convention were to be dealt with in separate treaties. This was the case at the advent of the 20th century, with the rise of such technologies as integrated circuits and computer software. Industrial intellectual property circles, notably in Switzerland, generally do not encourage the creation of new categories of intellectual property rights (IPRs). While there was a consensus on assimilating computer programs into the realm of literary works, and thus into the Berne Convention, this was not the case with integrated circuits (known more colloquially as “microchips”), for which the Treaty on Intellectual Property in Respect to Integrated Circuits was signed in 1989 in Washington. That treaty, still in force on its own, was subsequently incorporated in the WTO TRIPS (Section VII).
By the second half of the 19th century, Swiss interested circles ranging from industries, traders, authors’ associations and industrial property experts played a key role in fostering greater participation in the construction of IP unified rules, particularly on equal treatment between nationals of a participating country and foreigners and on unfair competition. Swiss export industries heavily relied on intellectual property protection abroad. The rate of patents filed by Swiss companies was already high in the 19th century, as Penrose wrote in the book excerpted above. The Paris Convention allowed members to join without patent protection with the expectation that such protection will be introduced. Switzerland was a case in point. Membership to the Paris Convention was an important element in bringing about patent protection in Switzerland, thus avoiding the loss of national treatment of exporters abroad provided for the the Paris Convention.
The Paris Convention and the Berne Convention, discussed below, have been referred to as the “conventions-mères” (or umbrella conventions): countries of both Unions reserve their right to separately conclude special IP agreements between themselves as long as the agreements do not contravene the provisions of the conventions. This arrangement has played a key role, favouring the continuous dynamic development of international IP law through revisions. The Paris Convention was revised six times − in 1900 (Brussels), 1911 (Washington), 1925 (The Hague), 1934 (London), 1958 (Lisbon) and 1967 (Stockholm) − to adjust its framework to accommodate technological changes, legal changes and new practices in countries around industrial property. The Paris Convention (Act of Stockholm, 1967) essentially addresses patents, trademarks and − importantly − protection against unfair competition, outlining fundamental principles in Article 10bis. Today these principles afford an important but still little-used potential to enforce corporate social responsibility requirements upon transnational corporations. In the 1980s, certain topical issues were discussed in relation to possible revision of the Convention, such as compulsory licensing of patents, protection of geographical indications and certificates of invention (a type of protection in planned economies that now appears to be obsolete and no longer used). Consensus was not reached thus the revision plans were abandoned, leaving the Lisbon Act of 1958 as the fundamental substantive text for members. These topical issues were later addressed in the negotiations for the WTO TRIPS Agreement.
Under the auspices of the Paris Convention, members of the WIPO and of the Paris Union have concluded treaties on further IP standards and the acquisition and maintenance of IPRs. The difficulty is noteworthy which the WIPO regularly has in addressing complex IP issues due to the economic, political and social diversity of its membership. This a problem currently faced by all intergovernmental organizations. Most of the latest new treaties have had to temper their ambitions, settling for more procedural rules harmonization, e.g. the Trademark Law Treaty. These achievements represent important progress in facilitating the granting of rights simultaneously for different countries, which is much appreciated by users and practitioners, including particularly the Swiss.
Summary
As reported by the WIPO in the 1983 centennial book on the Paris Convention, the refusal of foreign exhibitors to participate in the 1873 Vienna exhibition of inventions out of fear of being robbed of their inventions through commercial exploitation by third parties caused the idea to gain ground of having international IP protection rules. Initially developed in bilateral agreements, the Paris Convention eventually emerged out of sufficient bilateral critical mass, being signed in 1883 by 11 Latin American and European countries including Switzerland. The Convention established the Paris “Union” or association of contracting parties, laying down the basic foundations of the industrial property system, including particularly the principle of national treatment, rules on unfair competition and certain basic unified rules for the filing of applications for protection and registration of IPRs, e.g. priority rights for the filing of applications.
The Paris Union eventually created an international office (bureau) or secretariat called the Bureau International de l’Union pour la protection de la propriété industrielle which was placed under the authority of the Swiss Confederation. The Bureau, which was formed in Berne in 1893, commenced operation with a director and seven staff members responsible for administration of the Paris Convention. This selecting of Switzerland as the centre of competence for the Paris Union was the starting point for the country’s role in monitoring the Paris Convention. The move also increased interest in promoting IP protection among the Swiss public at large and among Swiss exporters. It may also have fostered a special IP and innovation culture in Switzerland and contributed to its emergence as an incubator of new technologies and inventions as reflected in the country’s ranking in world economic reports. In 1886 the Bureau was adjoined by the Bureau created after the conclusion of the Berne Convention (see infra B). The two administrative bodies were subsequently merged into a single entity named the Bureaux Internationaux pour la Protection de la Propriété Intellectuelle (BIRPI). These Bureaux existed and operated under a single roof at Helvetiastrasse 7 in Berne. Interestingly, the Bureaux were agencies under Swiss law and jointly administrated. Their directors were appointed by the Swiss Government until 1960, when the BIRPI moved to Geneva.
The WIPO book on the centennial anniversary of the Paris Convention in 1983 describes the work and the administrative structure of the Berne-based Bureaux and provides bios of its directors, who were all Swiss nationals between 1893 and 1963: Henry Morel (1893-1912), Robert Comtesse (1912-1921), Ernest Roethlisberger (1922-1926), Fritz Ostertag (1926-1938), Bénigne Mentha (1938-1953) and Jacques Secrétan (1953-1963). Jacques Secrétan was succeeded by the Dutchman Georg H.C. Bodenhausen (known for his seminal commentary on the Paris Convention), who in Geneva prepared the transition to the WIPO as an international organization under the auspices of the United Nations. These Swiss directors are aptly described and characterized as individuals in the book excerpted. Some had prior involvement in Swiss politics, and Berne-based international staff members advanced the cause of internationalizing intellectual property protection and establishing generally accepted minimum IP protection standards throughout Europe and beyond.
It was under the tenure of the last Swiss Director Jacques Secrétan that the seat of the BIRPI moved from Berne to Geneva in 1960 where an international environment was developing around the United Nations (UN) and some of its specialized agencies in particular. The Stockholm Act of 1971 represented on both an administrative and an institutional level, as a shift from an independent union of contracting parties over to an specialized intergovernmental agency of the UN − the World Intellectual Property Organization (WIPO). After Jacques Secrétan, the directors of the BIRPI and the WIPO as its successor were nationals of the Netherlands, the United States, Sudan, Australia and Singapore. Two Swiss nationals were entrusted with the second highest-level posts of Deputy Directors General: Joseph Voyame and François Curchod. The latter was the last Swiss national to hold such a high-level position. He was of critical importance in preserving and protecting WIPO interests when major powers blocked the evolution of a dispute settlement mechanism and sought to marginalize the WIPO to the benefit of the GATT. He was actively involved in developing an agenda and cultivating mutually beneficial relations and partnership with the WTO. The growing number of new members from all over the world and the principle of equitable geographical distribution in part explain why high-level posts have become less available or accessible to Swiss nationals.