Sunday, September 10, 2017

                                                             NEW STUDY

Examining Intellectual Property Rights Innovation and Technology within the Caricom Single Market and Economy.

By Abiola Inniss Ph.D. LLM


Caricom Single Market and Economy (CSME) firms operate under various laws and policies on intellectual property rights (IPRs), innovation and technology. International analyses and rankings rate the CSME countries’ performance as poor in comparison with others at the same level of economic development.  This results in negative impacts on the economic and social welfare of their communities. A paucity of data existed concerning the effects of policies on decisions by local firms to engage in innovation and technology activities. The purpose of this qualitative exploratory-explanatory case study was to examine the effects of policies on IPRs, innovation, and technology on firms in select CSME countries. The questions addressed how IPRs policies affect the choices of innovation activities by firms, and what differences in IPRs policies in the sample countries Guyana, Barbados, Trinidad and Tobago and Jamaica, influence the decisions by firms to invest in innovation and technologies. Landes and Posner’s utilitarian exposition that IPRs should be based on the maximization of social welfare provided the theoretical framework for the study. Various policy papers, firm studies, study reports, and legislation from government and international agencies were analyzed using four levels of inductive coding. Findings included a lack of clear IPRs policies, high levels of innovation where policies were weakest, and a general reluctance by firms in the countries to invest in innovation and technology. Further study of the sociological and cultural aspects of IPRs policies, and how they affect innovation in CSME is recommended. This study can help effect social change in the CSME by informing policies that maximize social welfare through innovation and technology.

Thursday, May 26, 2016

  Innovation, Intellectual Property and the Donor Industry in Caricom countries

By Abiola Inniss

The focus on innovation and technology has become synonymous with the narrative on the advancement of so-called developing countries as one of the most important means by which countries can move from low to high levels of economic development, to the extent that some are advocating for the renaming of the world groupings from developed and developing to technology rich and technology poor. This does not however properly take into account the economic dynamics which underlie the categorizations as they have come to be known.

The World Economic Situation and Prospects (WESP) report prepared by the United Nations categorizes countries into three broad areas, developing economies, economies in transition, and developed economies, and it seems as though movement through the categories follows a linear pattern from the least to the greatest. It is not quite so certain how so-called technology poor countries move into becoming technology rich without any definable transitory stages. The impassioned clamoring of advocates for changes in the way the world is viewed is of little value where it is unaccompanied by real solutions to the challenges faced in creating the kind of impetus needed for poor and developing countries to propel themselves from one level to the other. It is highly unlikely that the re-naming of categories of countries can actually change the reality on the ground. The fact is that the North-South (developed-developing) delineation exists along with particular distinguishing conditions.

It is the same with many of the well-meaning initiatives which come from many developed countries through assigned agencies and funding for the promotion of innovation and technologies in developing countries. These efforts are often short term project cycles which assume that what is needed is a demonstration of the worth of innovation, a contest for young innovators followed by a brief period of mentorship for contest winners, and away will go the innovation for development train - or not.

The advocacy for innovation and the quest to find the means by which it can be propagated in countries that seem unable to initiate and sustain programs which actually work are important, and are not actuated out of pure philanthropy.  Rather it is a combination of the considerations of the considerable economic advantages which can be gained by bringing an end to a parasitic relationship in which billions of dollars in possible revenues to developed countries are lost in countries which are weak in innovations and her twin sister intellectual property rights. Wholesale copying and reproduction of certain goods result in potential and actual losses which it is believed would be avoided where countries are doing more for themselves in creating an enabling environment for the growth, development and exchange of technology and information.

 Without doubt there is the firm belief by some academics and volunteer service sectors that developing countries can begin to bridge the technological gap by making use of old technologies from developed countries, and that with globalization as a catalyst, the process must necessarily move much faster. The instance of the widespread use of cell phones in Africa is an example of how imported technology impacted the everyday life across an entire continent, but the actual evidence of other technologies having the same effect is chastening. There has been little success in the importation and widespread adaptation of technologies in local usage in many developing countries for several reasons, among which are the lack of knowledge about the how to use them, and that the scale of usage is often so small that it remains within the purview of a few and often privileged sections of the society.

All of this would seem to augment the argument for the approach of the governments and agencies mentioned before, except that it too has failed to result in any lasting momentum in innovation in developing countries in the Caribbean. The reason for this is that the programs are not sustained for any lengthy time periods that would serve to institutionalize the culture of innovation and technological development. Undoubtedly this kind of effort should come from a sustained policy position of regional governments in which there is a dedication of resources towards science and technology, perhaps as a fixed percentage of each country’s GDP. Among countries which were formerly in the South category, Singapore is a prime example of how government economic policy which centralizes science and technology as a means of growth and development can propel a nation to economic prosperity. It is now reportedly the third richest country in the world.

So what about the Caribbean countries and the ‘donor industry’ which arrives on their shores in conquistador fashion with nicely packaged solutions to their challenges in innovation, technology and intellectual property? The Caribbean operatives seem willing to take whatever is handed out without thinking out what is needed and formulating policies that can direct assistance where it would be most useful.

 Donors need to rethink the ways in which they approach handing out goodwill. It should be common practice that a needs assessment is done before creating projects which are aimed at bolstering the promulgation of innovation or any other sector, but it often is not. It is quite common that assumptions are made on what should be useful in the region without actual research which results in the expenditure of millions of dollars and strenuous effort which amount to nothing. For example, someone with the best of intentions sitting in an office somewhere in Europe dreams up a project for innovation in energy conservation in Caribbean countries, when in actual fact the countries are plagued with blackouts for lack of energy resources and the most pressing concern in the region is really food security.
 It is necessary that donors work with organizations that are already on the ground to conduct research that can guide their efforts and carry out some of the work. Collaboration must begin at the point of conceptualization of programs. not merely in the implementation phase.

The regional governance body Caricom and some of its member countries have shied away from creating programs and policies which are truly focused on science, technology and intellectual property in ways which focus on the development of skills, exchange of information and the promotion of local innovation to the degree at which there could be significant change for the better. There is no question that all the help that can be had is needed, but it is equally important that those with actual knowledge of what is needed are properly engaged.

Abiola Inniss is the Executive Director of the Caribbean and Americas Intellectual Property Organization (CAAIPO) headquartered in Jamaica. She is a leading analyst and author on Caribbean Intellectual Property and the founder of the Caribbean Law Digest Online. She is also a law teacher, ADR practitioner and presenter and has lectured on Caribbean IP worldwide.


Follow on twitter : abiolainniss@firegal37

Tuesday, September 15, 2015

              The CCJ as a Court of First instance for Intellectual Property; revisiting the idea.

By Abiola Inniss

               In January 2010 this column first proposed the idea of the CCJ as a court of First instance for intellectual property (IP) matters. In the years following its publication, there has been a little movement in the area of IP in the Caribbean including the common usage of the term Caribbean Intellectual Property which was also introduced through this column. There has been some growing attention to IP and some movement at the level of Caricom to create a Caribbean Patent Convention with the intention of harmonizing the Patent laws in those Caricom countries which become signatories to it. There are still some areas which remain unclear such as how disputes will be resolved quickly and efficiently and whether there would or should be a choice of forum for disputing parties.
          It was the conclusion of this column in 2009 after considerable research, that there needed to be a dispute resolution forum which would handle IP matters outside the local jurisdictions and within the context of a legal and regulatory framework for Caribbean Intellectual Property, and which would provide expert and swift adjudication on matters before it.  Following is the text of the article as published with CaribbeanNetnews, the predecessor of CaribbeannewsNow, in January of 2010.
                      Caribbean Intellectual Property: The CCJ as a court of First Instance
           It is common knowledge that Intellectual Property issues have begun to envelope the Caribbean region at an increasing rate. One can be randomly exposed to discussions on this subject in almost every sphere of Caribbean activity, especially in the market places where the talk ranges from where the product is made, its quality and suitability and most importantly whether it is a copy or fake (in Guyanese the term is ‘caunter’ or ‘kawnter’ according to your taste) as against an original. This is among other things, the result of increasing consumption of goods and services that originate from developed countries and which have strict regulations attached to them under various agreements, alongside goods that come from other developing countries and which are sometimes shamelessly inferior but which are branded as the well known articles.

            Most Caribbean countries are members of the World Trade Organisation, which has instituted the Agreement on Trade related Aspects of Intellectual Property (TRIPS) as compulsory for participation in WTO programmes. The minimum requirements for TRIPS include the enactment of laws in each participating country that will ensure that mechanisms are in place to deal with regulation and enforcement of the law. In many Caribbean countries, however, there is a significant problem of enforcement where there has actually been enactment of the law because of the lack of financial and intellectual resources, in others there has been no enactment at all nor even an attempt to formulate such laws(see the Guyana Copyright Bill of 1999). This is further compounded by the issue of basic economics in which many families survive by peddling and otherwise dealing in bootlegged goods, from clothing, to DVDs, to electronic equipment and of course books, especially school texts.
           While it is the responsibility of governments to create structural framework for the economic advancement of its citizens , it is posited that the Caribbean Community (CARICOM) holds the responsibility for the creation of a general mechanism which will supervise the regulation of IP laws or/and, provide a regulatory framework for the subject matter within the context of the Caribbean Single Market and Economy; since one ought reasonably to ask the question “How are my IP rights to be protected in a common marketplace where there are no policemen?”

This question has not been adequately or at all addressed by the authors of the CSME who seem to have preferred not to visit the Intellectual Property issue in any but an ad hoc manner. It is useful to look to the European Union model of the regulatory framework, which deals with the creation of regulations on regional issues that are then enacted into the national laws of its member states, though at times these regulations may be directly applicable, meaning that the take effect in every member state upon ratification and without need for enactment in the various states.
       Such a system would be most efficacious in the context of the CSME and would enhance the working of the Community as a whole.This would, however, require longer term planning and, in the consideration of our current regional hesitancy and self-deprecating attitudes towards regional establishments, may not be implemented in a timely manner that can benefit the CSME aspirations. The solution to this conundrum can be in the use of the already established Caribbean Court of Justice as a court of first instance for Intellectual property matters, which decisions may become subject to review at two other levels (commonly known as appeals in the regular court system). In its original jurisdiction the Caribbean Court of Justice applies the rules of international law in respect of the interpretation of and application of the Treaty which established the Caribbean Community.
             It is intended that the CCJ should operate in much the same manner as an International Tribunal and in some ways similar to the European Court of Justice which is part of the regulatory body mentioned above. While some purists may argue that to task such an august body with the frivol of first instance Intellectual Property matters would be inappropriate or to quote one commentator ‘undignified’, they ought to be reminded firstly that the development of jurisprudence is no trivial task, that it is serious and substantial and that these issues in modern times need to be dealt with swiftly and decisively , and further that it may be safely asserted that the Caribbean citizens would much prefer to get value for money in lieu of ostentation and pretence.
        In the case of the European Court of Justice, it is noteworthy that there are regulations on wide ranging matters which affect the European Union citizens including Intellectual Property and that a court of first instance was established in 1988 to ensure greater access to justice and a fairer system of justice dispensation for its citizens. There is now a plethora of case law to be found in the registry of this court. The ECJ is, importantly, a court of final appeal.

            For those in love with precedent, there is ample evidence that creating regulations at the level of the Revised Treaty of Chaguaramas through new protocols, will afford the CCJ the jurisdiction to deal with matters of Intellectual Property and provide the basis for the creation of a working legal and regulatory framework for Intellectual Property. This is a relatively simple, cost effective and efficient method of implementing a Caribbean solution to a Caribbean problem.
As always it will be for our citizens to insist on better conditions and to enlighten the leaders to the fact that there are better ways of serving our community  

Tuesday, September 1, 2015

                       Some notes on the proposed Caribbean Patent Convention and Regional stasis 

 By Abiola Inniss

             The creation of the Caribbean Patent Convention under the auspices of Caricom is a long awaited and most welcome development towards the harmonization of intellectual property laws in the region. Even more importantly, it is an indication that Caricom leadership has at long last, after a lengthy period of stagnation and indeterminacy, finally decided to engage the process of thought and action necessary for the promulgation of a legal and regulatory framework for Caribbean Intellectual Property. Perhaps cocktails are in order, but for whom? Should Caricom nationals celebrate in anticipation of the realization of a substantial catalyst for innovation and trade? Should international firms with an eye on the region rub their hands in glee? Should those who have publicly pressed for action on intellectual property rights breathe a sigh of relief? 
          Whether one takes the view that stronger or weaker IP rights are more beneficial to developing countries (and there are many scholarly investigations to support either supposition), it is almost universally accepted that the value of IP continues to grow exponentially. Patents are recognizable as both legal protection and value creating, a fact upon which Patent trolls capitalize to great benefit. However, where an industrial product was once recognized as a composite of physical parts and components, it is now better identified as a composite of IP Rights which are often combinations of copyright , patents, industrial designs and even trade secrets; one could even add traditional knowledge into the mix for good measure without creating waves. The ways in which international firms treat with research and development and intellectual property have also evolved from a system in which research and development (R&D) were the first considerations and IP came after almost as a by-product. A paradigm shift in the way that firms operate brought about in large part by cyber-economics, has seen firms first creating an IP portfolio and then pursuing R&D to suit it. While analyses of patent filings such as that carried out by Patseer on World Innovation and Filing Trends 1995-2015, can give an indication of the levels of research and development taking place within a country or region, they cannot tell the entire story about the production, marketing and sale of the product, and international firms know this.
          One gets the impression that this proposed Caribbean Patent Convention is intended to facilitate local, intra-regional and international momentum in R&D which should in turn translate to real economic activity, productivity and growth. A tall order for a mere standalone part of the IP productivity equation. The developing countries which have made considerable strides in innovation, technology and development have most often used a combination of IP tools to do so and have also had the benefit of selecting the best mechanism for their particular need. Some have found that it was better to use the utility model also known as the petit patent to afford some levels of protection whilst allowing for the adaptation of inventions in industrial processes. Thailand for example, adopted the petit patents or utility model in 1999 and has since reaped the benefits of this approach from massive advances in research, innovations and technological developments.
                The questions must therefore be asked, “What are the economic and public policy approaches of Caricom to research and development, technology and innovations, and Foreign Direct Investments? Surely regional governance must be aware of the requirements of firms that seek to create modern IP portfolios from which research and development flow? Is there no recognition that while innovations can and should be endogenous, funding and technological knowledge are most often sourced internationally, therefore pressing the need to meet the requirements of international investors?” 

              There is also no question that locals deserve the same treatment and must be encouraged to forge a path of development through research and innovation as far as it is within their abilities to do so. If the region is to succeed in any thrust to join other parts of the developing world as players in the field of science and innovations, then Caricom must facilitate this by the creation of comprehensive intellectual property portfolio which includes, patents, trade-marks, industrial designs and trade secrets regulatory mechanisms   and it must be done expeditiously. In 2015 the region is way behind the rest of the developing world, and it is little comfort to learn of any marche `a petits pas on the way to economic, scientific and technological growth. Caricom must marshal all of the intellectual and physical resources available to it regionally and internationally in order to develop a viable IP plan, and fast. There will be no cocktails at this end anytime soon. A patent does not an IP portfolio make!           

Monday, April 27, 2015

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Thursday, January 15, 2015

CARICOM, The Trans-Pacific Partnership Agreement, And Intellectual Property Law And Policy: What Next?

By Abiola Inniss

The year 2015 has dawned as usual with the fanfare of greater things to come. Caribbean projects are in the pipeline, along with activities to enhance competitiveness and many gallant efforts by well- meaning non-governmental and International organizations. The research has shown, however, that without the impetus of effort that originates from amongst the local innovators, there is no real change and no great advancement.
The efforts of some regional establishments such as Compete Caribbean in instituting projects which should help in promoting and developing trade and investments ,as well as in providing some solid knowledge-based platforms from which policy initiatives can be launched, are laudable, but what next?
There is still little response from Caricom on intellectual property laws and policy which will allow for the development of innovation and trade both intra-regionally and internationally, and one wonders whether this is the result of lack of informed policymakers or simply a collective phobia of international intellectual property law and policy. Either way there must be an applicable cure and fast.
The history of international Intellectual property regimen in developing countries reveals that they have faced a barrage of international pressures concerning their implementation of the Trade-Related Aspects of Intellectual Property Rights agreement (TRIPS), which is an integral part of World Trade Organization (WTO) trade accords made by them.
Among the stresses exerted on the countries have been WTO accession agreements, trade sanctions and threats of sanctions, withdrawal of aid, diplomatic intimidation, economic threats from large industrial groupings and bilateral trade negotiations.
Developing countries have had mixed responses to these threats. In some instances they have tried to resist many of these pressures, and this has resulted in low levels of implementation of TRIPS. In others, there has been hasty implementation of laws as a peace offering to the developed country bloc, which has not balanced the interests of local economic and social policy needs resulting in chaos. Kenya’s IP system is an example of this.
 The top-down system of intellectual property regimen cannot work within developing countries without serious reworking and consideration, and although there is considerable argument for the so-called TRIPS flexibilities which are intended to give developing countries some leeway in the implementation of the laws relating to TRIPS, the point is that implemented they must be. Commentators who argue strenuously for TRIPS flexibilities seem to miss the point that it is the rules which are themselves problematic, not how or when they are implemented.
And what of Caricom? The aspirations to a Single Market and Economy carries with it the recognition that there must be adequate responses to the requirements of the world economic order and conditions, whatever those may be. It is a fact of our current existence that the world economy is now heavily based on cyber technologies which eliminate older slower processes, shift trans-national transactions to the internet, and create new and ever-evolving industries which are propelling developing countries which care to be involved, into technological and economic dominance. Singapore, China, India, Malaysia, Brazil and some others are a competitive presence on the world stage to the point where they can no longer be ignored, to this end The United States has been actively working on the Trans-Pacific Partnership Agreement (TPP) with 11 other countries, namely Peru, Singapore, Mexico, Malaysia, Chile, Japan, Canada, Australia, Brunei Darussalem, and Vietnam.
The aim of this agreement is to provide market access for goods made in America, implement new rules for state owned enterprises, have strong environmental commitments and labour standards and most notably to have a strong intellectual property rights framework. This indicates above all else that there is great urgency in the need to regulate the international intellectual property rights space in a way that has not been possible through TRIPS, and also opens the space for Caricom to evolve its own framework which will take advantage of this new era.
One cannot but take notice that the United States has completely ignored Caricom in these discussions, indicating that the region is not to be taken seriously in these kinds of international arrangements, with the result that Caricom and its Caricom Single Market and Economy (CSME) will be on the receiving end of whatever trade deals and intellectual property rights agreements result from this new arrangement with no way out.
Perhaps it is the intention of the Caricom policymakers that the region become the sun, sand and sea playground of the rest of the world , but even here it is doomed to failure because there are substantial resources in this regard in many other parts of the world. Caricom needs to rework its policies and get to work on becoming a respected voice in the international sphere. It is time to get busy in the world of international intellectual property.

Wednesday, July 2, 2014

                                                WIPO and Caribbean IP, what’s the point?

 By Abiola Inniss               

             Recent months have seen a few interesting intellectual property symposia in the Caribbean, in particular the WIPO –JIPO Regional Conference on IP and creative industries which was held in Jamaica from February 10-12 2014. It is quite interesting that in spite of the intention that it should be regional as indicated in the title of the conference, there seems to have been little participation from the fifteen member countries of Caricom and that most of the sessions focused on Jamaica and its situation, perhaps a natural outcome of the WIPO –JIPO collaboration.  Progressive Caribbean intellectuals in the area of intellectual property were also notably absent from the forum. In both of these situations WIPO (World Intellectual Property Organization) holds responsibility for not ensuring that the conference was widely advertised and that leading regional intellectuals were sourced. Without the involvement of a wide range of Caribbean participants, such a forum was nothing more than a Jamaica IP conference and the results of the consultations cannot be reflective of the regional interests.
         Jamaica is to be commended for its leading role in hosting the conference as well as its proactive stance on issues of reproduction rights and the creation of digital educational materials. It also operates the most progressive copyright licensing office in the Caribbean and seems to be working very hard to accommodate the newer forms of digital works which require copyright protection. The issue of the relevance of intellectual property to regional growth is yet to be properly addressed and this leaves the majority of countries asking the question “What’s in it for me?”, and “How do we go about implementing a system that works for us at home and complies with international requirements to an acceptable degree?” The  WIPO statistics for 2013 on IP registration in select countries in the Caribbean indicate that IP has accounted for a very small percentage of the GDP and that there has been no substantial growth for some time (see WIPO IP Facts and Figures 2013) ,a more particular example of this is that for the year 2012 Jamaica recorded one hundred and fourteen patent applications and sixty four for industrial designs, Barbados had a total of thirty six patents, one thousand three hundred and ninety seven trademark applications and four  for industrial designs ,Trinidad and Tobago recorded nothing in any category, and Guyana had nothing as well. The argument has been made that several developing countries including Malaysia, Korea, China, India and Brazil have managed to achieve relatively high levels of economic growth in the absence of strong intellectual property rights, but this was all in the past before the internet era dawned changing the economic paradigm, and introducing a system into which international trade has become subsumed, and the exchange of all kinds of information has become instantaneous.
      It should be of great concern to thinkers , policy makers  and international  organizations involved in the field of IP ,that such symposia which can help to enlighten and perhaps redirect regional efforts into positive action, do not reach the majority that needs the information the most. There is little point in the continuous hosting of meetings and other talk shops that do not reach top policymakers and other key decision makers and therefore do not make any noticeable contribution to changing the ways in which the Caribbean region treats with intellectual property issues. The approach to creating the balance of interests in public policy which will allow for IP regimen both compliant with local needs and international responsibilities requires intellectual expertise and practical application; thus far Caricom has failed to demonstrate any leadership in this area and has focused millions of dollars and considerable attention on reparations from slavery as a means of aiding development the region, an action so preposterous within the context of modern development  which is based on research and innovations, that  one can hardly think whether to laugh or cry.

     The Organization of Eastern Caribbean States has begun taking steps towards arranging its IP affairs in a comprehensive manner after the example of Jamaica and with properly accessed and applied expertise can be expected to make real progress within the next five years. In the meantime the statistical and other evidence on research and innovations as discussed above demonstrate the grave weaknesses in in policy and practical application across the region, WIPO and other international organizations which claim to work towards providing relevant resources for IP development would do well to rework their approach to Caribbean Intellectual Property.