[Upd-discuss] IP impact in Developing Countries
Andrius Kulikauskas
ms@ms.lt
Wed, 26 Mar 2008 22:54:31 +0200
Maria Agnese Giraudo,
Thank you for your gathering together excellent research on the problems
of Intellectual Property Rights protections in Developing Countries. As
we discussed, a one-page summary in your own words would be an excellent
point of departure for a debate on this important subject. Thank you
also for your passionate support of Fred Kayiwa's statement "Youths
Representing Youths".
Andrius
Andrius Kulikauskas
Minciu Sodas
http://www.ms.lt
ms@ms.lt
+370 699 30003
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Intellectual Property Rights protection impact in Developing Countries
By Maria Agnese Giraudo
Treaties
Trade –Related Intellectual Property Agreements TRIPS
http://www.wto.org/english/tratop_e/trips_e/trips_e.htm
World Intellectual Property (WIPO) Copyright Treaty (WCT)
http://www.wipo.int/treaties/en/ip/wct/
WIPO Performances and Phonograms Treaty (WPPT)
http://www.wipo.int/treaties/en/ip/wct/
Digital content and Internet
Dalindyebo Shabalala, in Towards a Digital Agenda for Developing
Countries, 2007
analyses the expansion of the international protection of Intellectual
Property Rights to digital and Internet content by treaties, with some
reference to national legislations. The Author considers the impact of
the enforcement of IPR in developing countries in term of risks and on
the contrary the development of Public Domain as a great opportunity.
http://www.southcentre.org/publications/researchpapers/ResearchPapers13.pdf
I have reported below Chapter VI.3 The Way Forward for Developing
Countries about suggested immediate actions to take and next steps
because suggest not only ideas but initiative to undertake.
Chapter VI.3
As an introductory matter, it is important to realize that innovation
and development, especially with
respect to developing indigenous industries is best served by copyright
that is strong enough to prevent
direct and literal copying for commercial purposes, but that is limited
so as to enable sequential and
interactive production of new goods and increased competition. In
ensuring this, developing countries
will also need to address the lack of access to educational materials
for students and the majority of
their population. With this in mind, the following agenda items are
proposed for the developing
countries as a way to begin to set the terms of the debate for
themselves. They emphasise ways to
retain and further access while simultaneously enabling development and
growth for indigenous
industries.
VI.3.1 Immediate Actions
A. Do not sign TRIPS-Plus, WCT and WPPT.
Developing countries should not sign such terms in bilateral treaties
with the United States or the EU,
even where they contain language similar to the agreed statements at the
WCT and WPPT and they
contain exceptions as allowed under Berne, TRIPS and general fair use
principles. The
implementation of such provisions in the United States and the EU has
proven to be controversial and
have not been shown to achieve their goals. Developing countries should
not sign on to unproven and
dangerous policies.
B. Those countries that have not signed the WCT and the WPPT should
refrain from signing them.
Those who have should reconsider their participation in the treaties.
Where they see a need for protection of the rights of their performers,
such protection may be better
limited to those provisions of the WPPT that they deem necessary and
under strict domestic law and
policy making. Those countries that have ratified the WCT and/or the
WPPT should give serious
thought to withdrawing their participation from the treaties.
C. Maintain and fully implement existing exceptions and limitations.
Access to digital and internet content for developing countries can only
be built on a regime that
ensures access to analog content. Developing countries must look to
models that create the largest
amount of freedom for analog content. This entails eschewing traditional
models provided by technical
assistance programmes from developed countries or WIPO and looking
instead to alternative models
such as the Tunis Model Law on Copyright for Developing Countries187 to
create more appropriate
model laws. Developing countries should begin the discussion as to how
it should be updated to
accommodate developments since it was first written.
A priority should be the establishment of the widest and most useful
education, library and
personal use exceptions to enable educational access for teachers,
institutions and students. While it is
not within the remit of this paper to fully flesh out such exceptions,
developing countries should focus
on the production of further work in this area.
Developing countries should insist on the application and inclusion of
existing limitations and
exceptions in every international agreement, ensuring that they are not
interpreted in any way as
giving up their sovereign right to determine applicable limitations and
exceptions for themselves.
D. Focus copyright enforcement on the protection of domestic artists.
Many enforcement programmes focus on border controls, reflecting the
interest to respond to political
demands from rich countries to the detriment of developing a holistic
enforcement strategy that
reflects balance in the IP system. Developing countries should place an
emphasis on ensuring the
remuneration of domestic creators/artists by domestic producers and
other content industry
intermediaries. The resources of developing countries are better spent
supporting domestic artists than
enforcing border controls for goods from developed countries.
E. Limit software copyright protection only to the non-functional
aspects of software. Do not provide
patent protection.
The example of the United States may be appropriate to follow; where
courts for a long time have
refused to extend copyright to those aspects of software that are the
inevitable result of the functional
requirements. The requirement to protect software as a literary work
does not require that such
protection be of equal strength as that for original literature.
The protection of object code as required under TRIPS must ensure that
de-compilation of the
object code is allowed. This is important to make the object code
human-readable and allow others to
determine its functionality, and/or reverse engineer it.
F. Do not extend protection to non-original databases.
There is little evidence to suggest that non-original databases need
protection (as provided for
instance, by the European sui generis regime) to provide an incentive
for their creation, while it is
clear that such protection would only serve to remove knowledge from the
public domain. Even where
copyright protection of original databases is required under TRIPS, such
protection should impose a
high burden of originality. Copyright protection should only be extended
to the structure, not the
contents, of the database.
VI.3.2 Next Steps
a. Negotiate Special Provisions for Educational Access for Developing
Countries.
Building on the tradition and precedent of the Berne Appendix,
developing countries must insist that
the new technologies require a new instrument or set of provisions to
ensure educational access for
developing countries. While exceptions and limitations are good
beginnings and stopgaps, bulk access
to materials is really what is needed for developing countries. In this
context a new deal for
educational access is necessary. However, as Okediji warns, developing
countries should beware of
any suggestion that the Berne Appendix can be the only basis for bulk
access to digital and internet
content.188
b. Formulate new and appropriate limitations for digital and internet
content that can be effectively
utilised.
Developing countries should begin the process of formulating limitations
and exceptions for digital
and internet content in their domestic law. In this, developing
countries have some natural allies in
civil society groups in developed countries who share many of the same
concerns about maintaining
access for their own communities. In particular, educational and library
institutions share their agenda
and have made proposals with respect to access to educational materials
that can form the basis of legislation, appropriately tailored, for
developing countries. In developing such new exceptions and
limitations, developing countries will need to be fully cognizant of the
application of the three-step
test. In particular, defining what interferes with normal exploitation
of the copyright may be difficult
in the digital and internet arena. A good beginning would address the
following issues in the near
term:
• Limits on technological protection measures– users of TPMs must be
required to enable
access for educational and other public interest exceptions. In
addition, the implementation
of anti-circumvention measures for those states that have signed up to
such commitments
should be limited only to acts of circumvention, not tools, and only if
such circumvention is
for access to copyrighted material. Although countries may not ratify
the WCT and WPPT
nor implement TPM measures under domestic legislation, they need clear
policy on TPMs
due to the fact that the exercise of such rights affects access issues
in the rest of the world.
• Exception for Search Engines – developing countries should ensure that
their copyright law
includes an exception for search engines which search, copy and
catalogue the web and the
internet, enabling users to find information easily. Those search
engines that are free to use
should be exempted from needed authorization to make copies, provided
that the copies that
they make are used only for searching and, that the links that they
establish direct the user to
the original content and not to the copies stored on the search engine
server.
• Exception for ISPs and P2P and other service providers. Internet
service providers should
be treated the same as any other telecommunications service provider.
Simply because their
network may be used for holding or transmitting unauthorized material,
ISPs should not be
held liable. In the same manner, peer to peer sharing and distribution
programmes should
not be held liable for the material that individuals place on their
systems. In the United
States, ISPs have been held indirectly or secondarily liable for the
activities of their users.
Since such liability issues are free for countries to decide for
themselves, developing
countries should ensure that copyright liability is only available for
direct infringement. If it
is necessary to have such indirect liability for copyright infringement,
such liability should
be limited to those cases where the service provider knowingly and
intentionally allows the
specific alleged material to be placed or transmitted on its servers.
• Exceptions for Temporary, Incidental and Ephemeral copies. Since
almost all computer
programmes that manipulate and transmit information also make incidental
copies, it is
necessary to ensure that such copies are treated as exceptions and do
not require a tax on
every single action of a computer programme. This is especially
important for web
browsing. However, this is only a concern where the right of
reproduction is considered to
cover temporary copies. Fixation requirements may also be used to
exclude temporary
copies from protection by requiring fixation for more than a temporary
period.
• No enforcement of unfair copyright licensing contracts. Developing
countries should not
recognise or enforce contracts that have terms that restrict or contract
out of exceptions or
fair use terms. As some commentators have rightly argued, the entire
point of such
exceptions and limitations is the public interest, and private contracts
should not be allowed
to contract around the public interest.189 This is especially important
in the area of software.
They should be treated as null and void where they conflict with the
public interest or where
they render public interest exceptions and limitations inoperable. TRIPS
makes no
requirements to restrict the interpretation and operation of contract law.
legislation, appropriately tailored, for developing countries. In
developing such new exceptions and
limitations, developing countries will need to be fully cognizant of the
application of the three-step
test. In particular, defining what interferes with normal exploitation
of the copyright may be difficult
in the digital and internet arena. A good beginning would address the
following issues in the near
term:
• Limits on technological protection measures– users of TPMs must be
required to enable
access for educational and other public interest exceptions. In
addition, the implementation
of anti-circumvention measures for those states that have signed up to
such commitments
should be limited only to acts of circumvention, not tools, and only if
such circumvention is
for access to copyrighted material. Although countries may not ratify
the WCT and WPPT
nor implement TPM measures under domestic legislation, they need clear
policy on TPMs
due to the fact that the exercise of such rights affects access issues
in the rest of the world.
• Exception for Search Engines – developing countries should ensure that
their copyright law
includes an exception for search engines which search, copy and
catalogue the web and the
internet, enabling users to find information easily. Those search
engines that are free to use
should be exempted from needed authorization to make copies, provided
that the copies that
they make are used only for searching and, that the links that they
establish direct the user to
the original content and not to the copies stored on the search engine
server.
• Exception for ISPs and P2P and other service providers. Internet
service providers should
be treated the same as any other telecommunications service provider.
Simply because their
network may be used for holding or transmitting unauthorized material,
ISPs should not be
held liable. In the same manner, peer to peer sharing and distribution
programmes should
not be held liable for the material that individuals place on their
systems. In the United
States, ISPs have been held indirectly or secondarily liable for the
activities of their users.
Since such liability issues are free for countries to decide for
themselves, developing
countries should ensure that copyright liability is only available for
direct infringement. If it
is necessary to have such indirect liability for copyright infringement,
such liability should
be limited to those cases where the service provider knowingly and
intentionally allows the
specific alleged material to be placed or transmitted on its servers.
• Exceptions for Temporary, Incidental and Ephemeral copies. Since
almost all computer
programmes that manipulate and transmit information also make incidental
copies, it is
necessary to ensure that such copies are treated as exceptions and do
not require a tax on
every single action of a computer programme. This is especially
important for web
browsing. However, this is only a concern where the right of
reproduction is considered to
cover temporary copies. Fixation requirements may also be used to
exclude temporary
copies from protection by requiring fixation for more than a temporary
period.
• No enforcement of unfair copyright licensing contracts. Developing
countries should not
recognise or enforce contracts that have terms that restrict or contract
out of exceptions or
fair use terms. As some commentators have rightly argued, the entire
point of such
exceptions and limitations is the public interest, and private contracts
should not be allowed
to contract around the public interest.189 This is especially important
in the area of software.
They should be treated as null and void where they conflict with the
public interest or where
they render public interest exceptions and limitations inoperable. TRIPS
makes no
requirements to restrict the interpretation and operation of contract law.
Scientific Research and Economy
IPRs in TRIPS are trade-related , it means that "on one hand, there is a
strengthening of IPR that favours industrialised countries. On the
other, there are some international trade compensations favourable to
developing countries.” (Forero-Pineda,2006, p.813)
“[…] Trade compensations, granted by developed countries in exchange for
more protection of IPR in developing countries, may balance the
developing-country welfare-losses. Nonetheless, they may exacerbate
those two negatives[in small countries], long run effects on domestic
research. First, there is an additional stimulus to allocate investment
resources to goods receiving incentives (traditional goods). Their
technology content is low, and this will reorient resources away from
domestic technology production[…]
Trade-relating intellectual property will have two main consequences:
(a) a deeper international division of labour, and (b)[…] and increase
or decrease of the technology sector of this
country”(Forero-Pineda,2006, p.814)
Other disadvantages and costs of strengthening IPRs:
High prices for imported products and new technology
Loss of economic activity, by the closure of imitative activities (Lall,
2003, p.1661)
“[…]The increase in the price of manufactured goods will induce a switch
in domestic consumption from manufactured to traditional or imported
goods” (Forero-Pineda,2006, p.813).
Favourable environment for innovation is restricted to :
Transnational companies
Countries with R&D capability
Sector: Pharmaceutical multinational companies
Advantages for developing countries due to weak IPRs:
Imitation and reverse engineering in technological development
(Korea,Taiwan etc.)
Local pharmaceutical firms (India etc.)
Development of Science in Developing Countries
Access to scientific knowledge: publications, databases, two-way
exchange, validation of results,
Training, co-authorship.
Open Access movement Initiatives: Pubmed Central- Biomed Central- Public
Library of Science- Hinari-OARE- AGORA
Patents in pharmaceuticals
After TRIPS agreements the most important consequence for developing
countries has been “ the mandate to accept the patenting of
pharmaceuticals” dismantling local industrial production.
“India legislation of 1970 and many developed countries either refused
patenting of pharmaceutical products or patented processes [….] At the
time of the GATT Uruguay round, almost 50 developing countries did not
grant pharmaceutical patents.
The approval of TRIPs has reversed this tendency […]Member countries of
WTO are required to grant both product and process patents in the
pharmaceutical sector.” […Added to patent] trade secret protection
“would not cover the product[…but] the clinical research. […]
Pharmaceutical companies from developed countries fear the proliferation
of small laboratories in developing countries dedicated to the
production of no-patent and post-patent generics…” (Forero-Pineda,2006,
p.815).
Developments in this sector:
Agreement in 2001 between WTO and WHO about price differentiation of drugs.
Monopoly of patented drugs and lower quality level of no-patented drugs
No benefit from research for developing countries
General Trends of restriction of Public Domain in favour of IPRs
Bayh-Dole Act 1980 (shifting from Public Domain to pro-patent position)
France- Innovation and Research Law 1999.
Extension of IPR into scientific knowledge and production activities,
connection of science with R&D, Research laboratory have commercial
relationship with industry with increasing protection and patents.
Sources
Forero-Pineda Clemente The impact of stronger intellectual property
rights on science and technology in developing countries Research Policy
2006;35:808-824.
Lall Sanjaya Indicators of the relative importance of IPRs in developing
countries. Research Policy 2003;32(9):1657-1680.