WIPO ADR Stories: How Women are Making a Difference in IP Dispute Resolution
Intellectual property (IP) is a critical component of modern economies, powering innovation and creativity. In 2023, on World Intellectual Property Day (marked every April 26), we celebrate Women and IP: Accelerating Innovation and Creativity, commemorating women who continue to make significant contributions to IP, while raising awareness about the challenges faced when participating in the IP system. The field of IP benefits when women engage in innovation and creativity, providing for a diverse and inclusive ecosystem, and improving our collective capability to transition to a more sustainable future, including how IP disputes are resolved.
Resolving IP Disputes through ADR
Women still face barriers in accessing and asserting their IP rights due to discrimination, bias, and unequal opportunities. Despite that, women make groundbreaking contributions in the field of IP and innovation. Alternative dispute resolution (ADR) mechanisms, such as mediation and arbitration, support creators and innovators by offering more efficient, cost-effective, and tailored solutions to IP disputes than traditional litigation. Women have played a significant role in advancing ADR for IP disputes, both as practitioners and as advocates for diversity and inclusion, as the WIPO Arbitration and Mediation Center continues to see more female pioneers in this field. This article compiles expert testimonials from different regions, industries, and legal systems.
María Gabriela Talavera García, Director of the Directorate of Intellectual Property Rights of the Supreme Court of Justice of Paraguay, believes in the importance of raising awareness of the benefits of ADR and providing accessible education to allow for the development of IP ADR. Through intensive training programs, she has contributed to the “successful implementation of mediation in the Supreme Court of Justice of Paraguay as an alternative method of IP dispute resolution.”
Ida Palombella, Head of Intellectual Property, Information Technology, and Data Protection at Deloitte Legal in Italy, and an experienced litigator and mediator who has handled several complex and high-profile IP disputes, recognizes the value of ADR as an effective way to resolve IP disputes in areas such as the fashion industry. She highlights the main advantages of ADR, including: “(i) speed and cost-effectiveness of proceedings, especially when dealing with cross-border disputes, which is often the case for internationally renowned brands; (ii) confidentiality, as ADR allows parties to keep the proceedings and its outcome private. This is particularly relevant for the fashion sector, which is extremely sensitive to image and reputation issues; (iii) flexibility, since ADR proceedings offer the parties the opportunity to exercise greater control over dispute resolution modalities; (iv) ADR’s capacity to preserve business relationships and to obtain “win-win solutions”; (v) last but not least, handling of ADR proceedings by experts in the relevant field, which is key when specialized expertise is required.” Ida’s approach to ADR emphasizes the importance of understanding the parties’ interests, needs, and motivations, all while finding appropriate solutions that satisfy stakeholders in this industry.
All IP areas can benefit from ADR. For example, copyright and content-related disputes, particularly in the digital environment, can involve complex legal, commercial or management issues, and given the cross-border nature of the Internet, they often involve multijurisdictional aspects with a diversity of parties. ADR can be a suitable way of resolving such disputes, and recent legislative developments in several jurisdictions confirm this trend.
María José Arancibia, a Chilean lawyer at Obrador Digital Legal and also representative of the Escuela Latinoamericana de Propriedad Intelectual (ELAPI), points out that “if, for example, we take the case of the invention of patents or copyrights, we will see that the technologies associated with them are advancing at a dizzying pace, a situation that requires a justice system that is keeping up with the times and that legal conflicts are not held within a judicial system that was created without being aware of this reality. Submitting IP disputes to an arbitration or mediation procedure makes it possible to guarantee the aims of justice and to provide a swift, high-quality response to the parties involved.”
Likewise, Sophie Nappert, an arbitrator based in London and a pioneering practitioner at the intersection of arbitration and Legal Tech, highlights that “as ways of doing business evolve, as new types of commercial transactions emerge, so the nature of the disputes arising out of these transactions changes, as does the vector for their resolution. Just as commercial arbitration historically flourished because industry-specific disputes demanded decision-makers who were knowledgeable in the given industry and respected by their peers, so the current reality of e-commerce is giving rise to a new breed of cross-border, high-volume, low-value, one-shot disputes for the resolution of which traditional processes are ill-suited, premised as they are on due process measures that are time-reliant – each party’s right to be heard, and the equality of arms, require a meaningful and sufficient time factor.”
Christine Kang, an experienced arbitrator and Partner at Hughes Hubbard & Reed LLP, New York, also agrees that ADR continues to grow in popularity to resolve various forms of complex IP disputes.
“The popularity and success of using ADR for IP disputes come from several obvious advantages of ADR in comparison with court litigation, including mediator/arbitrator’s expertise in special industry or area involved in IP disputes, party autonomy and ability in creating their own dispute resolution procedure, and cost-effectiveness comparing with lengthy and expensive IP court litigation.”
Similarly, according to Christiane Féral-Schuhl, a legal practitioner and mediator at Law Office FÉRAL in France, “professionals I meet in the context of mediations are frequently convinced by its effectiveness. Often, the lawyers of the arties come to tell me separately that they had started the mediation process without believing in it and that they could never have imagined the solution that emerged over the process. Their respective clients were fully satisfied.”
María Balsa Cadenas, CEO of Contratos Digitales and IP Facilis in Uruguay, emphasizes the advantages that technology brings to mediation to help expedite the resolution of IP disputes.
“Mediation can offer significant benefits, particularly when it is facilitated by experts who can provide a deeper understanding of the issue at hand. By leveraging innovative technologies, parties can reach mutually beneficial settlements more quickly and effectively. With recent advancements in technology, including in the Metaverse, there is exciting potential to streamline the resolution of complex commercial disputes, including those involving IP.”
María also highlights a positive development for mediation in her country, Uruguay, has recently joined the “Singapore Convention on Mediation.” The Convention intends to provide a uniform and efficient framework for international settlement agreements resulting from mediation.
In Spain, Marisa Castelo, President of Instituto Autor, is pioneering the development of mediation for copyright disputes: “Instituto Autor, in collaboration with the WIPO Center, has created the mediation chamber specialized in intellectual property MEDIAUTOR-WIPO. On this special day, we encourage all women experts in IP, who are many and wonderful professionals, to collaborate with this project and apply to join as mediators. The first step to end the gender gap starts by taking a step forward.”
Empowering women around the world in IP and ADR – The role of Intellectual Property and Copyright Offices
WIPO collaborates with several IP and Copyright Offices in different regions to raise awareness of the advantages of ADR and to provide dispute resolution options for IP and technology. The impact of women in IP and ADR has been shown to go beyond individual achievements.
Claudia Patricia Pérez Aguirre, Director of Arbitration at the National Institute of Copyright of Mexico (INDAUTOR), emphasizes the importance of empowering parties during mediation and the role of the facilitator in managing conflict from a gender perspective.
“In order to guarantee a constructive dialogue in mediation, it is necessary to consider several elements such as: an assertive use of language, empathy, strategic application of communication techniques and tools, without forgetting the balance and empowerment of the parties, which often, if not taken care of, can compromise the outcome and direction of the procedure. In this sense, the role of the facilitator becomes more important, who must attend to and direct the procedure under the principle of equality, without losing sight of equity, that is, considering the cultural context and the possible vulnerability of the participants; which also obliges him/her to manage the conflict with a gender perspective, since one of his/her main functions is to work so that the empowerment and balance is proportional between the parties.”
In 2022, over 8,900 works were registered by women before INDAUTOR, representing 26% of the total number of registered works.
“Women requesting services at INDAUTOR are on the rise, gaining empowerment and presence in the field, both as rights holders and as professional representatives. As part of its services, INDAUTOR offers ADR procedures (in its mediation and/or conciliation modalities), which are provided in person or online, in co-administration with WIPO. As an example of public policies in favor of equality, at INDAUTOR 75% of the staff who manages the amicable resolution of conflicts are women highly trained in IP and ADR. Currently, women represent over 55% of the total number of people working at INDAUTOR.”
In the same way, the Copyright Office of Tanzania (COSOTA) has resolved over 450 copyright disputes through ADR. Doreen Anthony Sinare, COSOTA’s Chief Executive Officer and Copyright Administrator, says that she has “observed a noteworthy trend where both plaintiffs and defendants are increasingly choosing ADR as their preferred method of resolving disputes. This is due to the process being more straightforward, cost-effective, time-efficient, and leading to a positive relationship between parties, even allowing them to continue working together in a mutually beneficial manner. ADR proves to be a better alternative to litigation.”
She also recognizes the need for more women in the field of IP to accelerate innovation and creativity and reiterated that there is no doubt that “not enough women are working in IP.”
In the Republic of Korea, the WIPO Center actively collaborates with the Ministry of Culture, Sports, and Tourism (MCST) to offer dispute resolution options to the creative industries. Sojeong Kim, Policy Specialist at the Cultural Trade and Cooperation Division of MCST stresses that “with the unprecedented boom that Korea’s cultural industry is enjoying on a global scale, the creative industry has laid a solid foundation as a major sector of Korea’s economy as well.” Sojeong sees an urgent need for dispute settlement options, where traditional methods such as court litigation, are no longer as efficient in keeping up with the times.
“It is highly likely that disputes and litigations involving copyrighted works could soon outnumber other IP-related litigation matters. At MCST, not only do we recognize this remarkable shift in the litigation landscape in the IP system, but we also acknowledge and value the importance of mediation and arbitration as appropriate solutions to copyright- and content-related disputes.”
Maria-Daphne Papadopoulou, Acting Director at the Hellenic Copyright Organization, believes there are “undoubtedly valuable and useful ADR tools that have started slowly but surely to be addressed in Greece after the adoption of legislation that established the mandatory character of the initial mediation session regarding specific cases of civil and commercial disputes. ADR mechanisms have also been addressed in cases such as the restitution of cultural property and, in general, in cultural heritage law.” Maria-Daphne is actively contributing to the development of IP ADR in Greece, including through the development of a collaboration between WIPO and the Hellenic Copyright Organization, as she “strongly believes that these initiatives will boost the recourse to ADR solutions regarding copyright disputes.”
Many IP and Copyright Offices continue to set an example of how Member States contribute to bridge the gap in the involvement of women in the development of IP dispute resolution options.
Together we overcome challenges
The WIPO Center focuses on reducing the gender gap in IP ADR through various initiatives. For example, women currently represent over half of the participants that take part in WIPO ADR training sessions and workshops. Against this background and recent developments in the international arbitration community, WIPO has joined the Pledge for Equal Representation in Arbitration initiated by a group of leading counsel, arbitrators, industry, and arbitral institutions. The Pledge is designed to raise awareness amongst key actors within international arbitration circles of the need for more gender diversity, particularly on arbitral tribunals.
The various testimonials listed in this article demonstrate just a small number of contributions women have made in the field of IP and ADR. Their leadership and diverse perspectives shape the development and positive effects ADR brings to the resolution of IP disputes. By building on the strengths and benefits of ADR and by promoting diversity, inclusion, and social justice, we can create a more resilient and prosperous IP ecosystem for all.
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WIPO Arbitration and Mediation Center