[Ecommerce] FYI: IPR treaties and access to educational materials

[Manon Ress]

In the Star Online:

Do intellectual property rights treaties restrict access to educational
materials, preventing South countries from bridging the development gap?
SHAILA KOSHY looks at the trend in these treaties.

http://thestar.com.my/lifestyle/story.asp?file=3D/2004/9/27/features/883656=
1&sec=3Dfeatures

SNIP
=93If copyright existed from ancient times, the works of great minds like
Valmiki (author of Ramayana), Siddharta Gautama Buddha, Nanak, Tsun Tzu,
Confucius, Avicenna (the most influential of Muslim philosophers) and
Ibn Arabi would not have been freely available, enjoyed and used the
world over,=94 says Consumers International, Asia Pacific, (CIAP) regional
director Datuk Dr S. Sothi Rachagan.

=93I do not for one moment believe that these great writers would not have
produced their masterpieces if they had not been given the incentive to
profit from their work through copyright protection.=94

In the age of globalisation, where international law-making is replacing
domestic policy-making, Dr Khaw says the Agreement of Trade Related
Aspects of Intellectual Property Rights (TRIPS) 1995 has made
intellectual property rights (IPR) a trade issue, obliging World Trade
Organisation members to apply the minimum standards set forth.

Dr Sothi adds that since the adoption of IPR instruments, the resources
of developing countries have been spent disproportionately on putting in
place the systems for protecting and enforcing the interests of
copyright owners rather than making gains out of the use of these
knowledge products.

The notion of copyright would be acceptable to most people if producers
and exporters of copyrighted material and consumers stood on equal
footing on the development-ladder.

Unfortunately, research by CIAP shows a substantial proportion of the
population in developing countries do not even have access to education
=96 that as many as 115 million do not attend school (three-fifths of whom
are girls) and 879 million adults in the world (two-thirds of whom are
women) are illiterate.

If access to educational materials, especially in the field of higher
scientific and technical education, is crucial for the development of
human resource, it=92s only common sense that people, schools,
universities and libraries need access to affordable teaching and
learning material.

One way those in South countries can bridge the development/knowledge
gap is to reclaim the public domain where copyright of educational
materials is concerned, says Dr Sothi.

Dr Sothi points out that the United States justified its persistent
refusal to grant copyright protection to foreign authors during the 19th
century on the grounds it was necessary to meet its needs for knowledge
and enlightenment. And yet, the same transition period has not been
accorded to developing countries, he says.

Developed countries, which enjoyed a long grace period for their
societies to freely access knowledge that was publicly available, today
dominate new worlds with their superiority in technological advancement
and as primary producers and exporters of copyrighted material, says Dr
Sothi.

And it hasn=92t helped developing countries that copyright protection for
educational materials has only strengthened since the Berne Convention
was adopted in 1886.

The convention initially granted a term of protection for the life of
the author and seven days after his death but in 1908, this was extended
to life and 50 years after his death, says Dr Sothi.

=93This same minimum standard exists with TRIPS 1995 and the World
Intellectual Property Organization (Wipo) Copyright Treaty 1996. In the
EU, it is the life plus 70 years and the same exists in the US since
1998.=94

British judge Justice Laddie once remarked on the absurdity of this:
=93You can libel a dead author to your heart=92s content but if you want to
honour him by publishing a commemorative edition of his letters 50 years
after his death, you will infringe copyright.=94

Irony aside, TRIPS and the Wipo Treaty have also expanded copyright
protection to areas that were previously not covered in the convention.

Do IPR treaties, whose development is charted by developed countries,
even attempt to balance rights?

In theory, the Wipo treaty and Article 7 in TRIPS recognise the need to
balance the rights of authors and the larger public interest,
particularly in education, research and access to information.

But the reality is this: =93Bigger, more developed countries are generally
wealthier, and the less developed countries require trade from them to
grow and develop further,=94 senior lawyer Khoo Guan Huat points out.

IPR treaties are but one of the mechanisms used as part of the
bargaining process between countries, he adds.

In the era of independence, Dr Khaw says many developing countries tried
to roll back what they felt was an unfair bargain. However, this state
of affairs did not last long.

=93In Malaysia, consumer politics, be it in terms of legislation reform or
enforcement, has yet to make an impact on copyright law, unlike the
United States=94.

The trend now was to push for =93harmonised=94=91 protection periods throug=
h
bilateral agreements such as the Free Trade Agreement (FTA) between the
United States and Singapore, and the draft FTA between the United States
and Australia, says Dr Khaw and Dr Sothi.

How effective are the mechanisms to balance exclusive rights in IPR
instruments?

These instruments come with conditions and qualifications for conferment
of copyright such as limitations on duration of protection, restrictions
on the scope of exclusive rights, and exceptions and limitations to
exclusive rights.

Dr Sothi argues, however, the balance was illusory.

He says the introduction of a new sui generis (unique) database rights
by the European Union in 1996 had cast doubts on the view that the
idea-expression dichotomy in copyright served the important public
policy of preserving and enriching a public domain of materials and
resources that the public could freely draw upon.

=93The exercise of such a right may have the effect of restricting access
to data or information that are not, in itself, protected by copyright
laws, especially in single-source situations (where there is only one
database source)=94.

Dr Khaw adds that with technology protection measures (access or copy
control measures), materials no longer protected by copyright can be
taken out of the public domain if they are re-compiled as databases.

And the scope of exclusive rights had been expanded to include new
rights such as the right to control commercial rental and the right to
control communication to the public, says Dr Sothi.

Copyright law will never tip in favour of the consumers, especially when
the negotiating parties are developed countries against developing
countries.

Being able to read and write alone is not the determinant of an educated
citizenry who can contribute to development. What a country like
Malaysia should do is focus on developing its human resources.

According to the United Nations=92 Human Development 2003 and CIAP=92s
research findings, developing countries are not investing enough in
public education.

Very little attention appears to have been paid to the importance of
investment in educational materials both at the national and
international level, says Dr Sothi.

=93Data on funds spent on the acquisition of educational material is
lacking in any of the official reports of the UN agencies, the World
Bank and other international organisations working on education issues.

Developing countries would do well to invest wisely in education as
there will never be a convergence of viewpoints between developed and
developing countries on copyright protection.

But developed countries in the WTO can give developing countries a real
leg up the development ladder and not just force them to remove barriers
to trade and services, otherwise globalisation is just another attempt
at colonisation.



# Tomorrow: Have copyright laws resulted in exorbitant prices for
textbooks at tertiary level?




--
Manon Anne Ress
Consumer Project on Technology
www.cptech.org
PO Box 19367, Washington, DC 20036
manon.ress@cptech.org, voice: 1.202.387.8030, fax: 1.202.234.5176