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

             CARIBBEAN INTELLECTUAL PROPERTY                                                           CONSULTANCY

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For more than a decade we have partnered with Attorneys and scholars across the english speaking Caribbean and Haiti to provide you with the best options for your Intellectual propety needs.

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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.

Tuesday, April 29, 2014

Copyright    today; Perspectives on Local and International Copyright Issues

By Abiola Inniss LLM, Ph.D. Law and Public Policy Researcher, Walden University.U.S.A

Caribbean Copyright Consultant WIPO

.A presentation on the occasion of World Book and Copyright Day ,April 23rd,2014 at the National Library ,Georgetown,Guyana.              
              Chairman of the Guyana National Library Commission, Madam Chief Librarian, Members of the Diplomatic Corps, Distinguished Guests all, I am delighted to be here with you to celebrate this important event. I was extremely happy to accept the kind invitation from the National Library to come home to share some knowledge on the cutting edge issues of International Intellectual Property law and on Copyright in particular. Today on world book and copyright day we acknowledge the contributions of creative artists of every kind all over the world especially our local authors.       The World book and Copyright day was the creation of the UNESCO General Conference in 1995 in honour of a number of famous writers whose death anniversaries occur on April 23rd. Among those authors are Miguel de Cervantes Saavedra ,Maurice Druon, Inca Garcilaso de la Vega, Haldor Kiljan Laxness, Manuel Mej√≠a Vallejo, Vladimir Nabokov, Josep Pla and William Shakespeare. In the Caribbean region, we honour the works of those writers who have contributed to our cultural heritage as a region,Jean Rhys,Merle Hodge ,V.S Naipaul, Samuel Selvon and numerous others and most importantly the long list of Guyanese authors who have documented our history, moulded and promoted our culture, fed our curiosity, shaped our national consciousness and sense of belonging and fired our loyalties. I think of  the well known and celebrated authors, Martin Carter, Arthur,J Seymour, Edgar Mittelholzer,Wilson Harris, Jan Carew, A.L Luker (Composer of the lyrics of the National Anthem),  Walter Mac ,A, Lawrence ( who wrote the words for the National Song ,O Beautiful Guyana, the music was composed by the great Valerie Rodway) Ian McDonald and the lesser known such as Mercedes Pierre Dubois,J.W Chinapen,Mahadai Das,Shana Yardan, Helen Taitt, Henry Josiah,  Ivan Forrester,Maureen Prince,Donald Trotman and  Jacqueline De Weever. I think that it is only fitting that we create a Day of National Observance and establish a monument to honour  and promote the work of the hundreds of Guyanese authors and creators who remain unsung and unknown. It is important that we honour our literary heritage.

      The intention of the United Nations in the creation of World Book and Copyright Day is to pay tribute to all writers and their contribution to world culture, the books they wrote and the copyright which protect these works. This honour is now extended to all creators and those who deal with copyright protection. On this day as well in select years, the United Nations awards the UNESCO Prize for Children and Young People’s Literature in the Service of Tolerance. It is the aspiration of the United Nations that the celebration of this day will increase the awareness of and adherence to copyright laws as well as the understanding of intellectual property in general.         In recent decades intellectual property has become an imposing element in the world economy because of the exponential growth of the internet and internet based economic activities which touch every aspect of life from international trade to internet dating. The concept of intellectual property is premised on creations of the mind or so called intangibles which are literary and artistic works, symbols and designs and names and images used in commerce among others. Intellectual property is generally protected by law in the forms of patents, trademarks, and copyright which are part of the domestic laws in most countries but which now also extends to the International law in the form of international intellectual property law and have a number of international regimen attached such as the World Trade Organizations Trade Related aspects of Intellectual Property Rights.        International Intellectual Property law is a patchwork of intersecting multilateral and bilateral agreements and their resulting harmonization of national laws. This is an area that has increased in importance and has seen very frequent litigation, especially in the areas of patent, trademarks and copyright .Additionally there has been clamouring for the protection of domain names, software, databases, and traditional knowledge which are new forms of protection. These cutting edge intellectual property issues are often dealt with at the level of the World Intellectual Property Organization (WIPO). Along with these forms of protection trade globalization has had a direct effect on the harmonization of national laws through WTO and the TRIPS agreement as well as regional organizations such as the African Regional Intellectual Property Organization (ARIPO). The lesser known areas of law include rights of publicity, moral rights, misappropriation, unfair competition, geographical indications of origin ,trade dress, licensing, plant variety protection, integrated circuit protection and paracopyright (which includes laws which prohibit the circumvention of anti-pirating technology). Paracopyright is a term that refers to an umbrella of legal protections above and beyond traditional copyright. It is also sometimes called "pseudocopyright" or "metacopyright". The most often cited example is "legal protection for technical measures" from the 1996 WIPO Internet treaties. Paracopyright provisions in these treaties are not about the term or scope of copyright, but instead are about providing legal protections for the technologies that may be used by copyright holders.
Paracopyright affords legal protection to technologies that claim to be used to protect copyrights, but that are ineffective in doing so.  For example, a technical measure cannot stop a technically sophisticated person who decides to infringe copyright. To use the "digital locks" analogy, there is no need to "pick the lock" as the keys necessary to decode the content are  already embedded within authorized access technology. The locked content as well as the technology containing the key are commercially available to an infringer. As long as one person decodes a technical measure, the decoded content can be made available to others in the same way as if the technical measure never existed.The effects of these technical measures are to impose specific contractual license agreements on those conforming to copyright law. The concept of paracopyright is possibly better understood as a part of contract law and not copyright law. It is notable however that important regulations regarding consumer protection and the "freedom to contract" are not directly included in paracopyright laws, potentially creating imbalances in the law and harmful unintended consequences in the forms of open-ended legal issues.
         It is an interesting fact that physical property can sometimes contain elements of intellectual property as in the case where a piece of machinery is based on a patent ,a book may have material which has been previously copyrighted or a website may have copyrighted pictures. Intellectual property laws often define what a person can do or not with the intangible or with a copy of the tangible.      We are living in exciting times at the cutting edge of law and technology. More than ever before, the creation and dissemination of information is swift and easy and may take a variety of formats. For publishers traditional functions, processes and infrastructure technologies are fast becoming obsolete along with traditional copyright law. The Gutenberg system which was used by publishers for more than five hundred years is hardly relevant today. The Gutenberg press system mechanized copying and made copyright necessary, digitization has moved us far beyond ink and paper and created a complex web of issues which deal with international and municipal law, economics, public policy and the public interest, all of which are inevitably connected to the issue of enforcement of the laws.    The traditional methods of publishing comprises multinational conglomerates with many layers of management, producing several imprints, time sensitive physical inventories, and processes that takes months and sometimes years before a book gets published. In today’s world anyone, anywhere can be a published writer and anyone can be a publisher and it happens instantaneously. This occurrence has radically decentralized the marketplace and we have seen the results of this. In the United States major book stores have gone out of business or are severely challenged to remain competitive, that is to keep the interest of the general consumer. Borden bookstore chain filed for bankruptcy and went out of business a few years ago, because of competition from the Amazon conglomerate, which provides e-books at a far cheaper price and affords immediate access to them through a variety of means including several versions of its e-reader tablet called the Amazon Kindle, all the while retaining robust trade in hard copy books which can be shipped to your door by express in several countries world -wide. Barnes and Noble has remained competitive by providing similar services and a Nook series of tablet e-readers along with hard copy books. The smartphone and tablet innovations have added to options through which people can access information. This has caused some very specific challenges to arise both for general consumers and the legal systems.  Data found on a computer can be subject to attack anywhere in the world, forcing courts into an interesting analysis of conflicts of laws, particularly considering the variation remaining after the ratification of The Berne Convention for the Protection of Literary and Artistic Works. 

The US and EU Responses 
The Berne Convention attempted to establish equal and automatic protections for copyrighted works throughout signatory nations, but has been somewhat unsuccessful in reducing differences in substantive issues. This is not surprising because the Berne Convention is not self- executing, meaning that countries which are signatories must still enact legislation to give local effect to the provisions of the convention. This is the difference between signing on and signing in, many countries sign on to treaties but never go any further to make them live within their borders.       As a result there are still considerable variations throughout signatory jurisdictions with regard to fair use defenses, duration of protection, authorship and ownership regarding works-for-hire, and a number of other issues.  With the increasing complexity and speed of data travel comes the need for swift action to establish uniform choice-of-law provisions within the Berne Convention as this family of treaties grows. The Berne Convention was drafted and ratified by over 150 nations in 1886 in an attempt to ensure copyright protection across the globe.  The Convention sought to establish equal treatment in each of its signatory nations’ jurisdictions by instigating minimum standards for protection.  The United States acceded to the treaty in 1988, over a century after its establishment.  Soon after the United States joined the Berne Convention, advances in technology made it clear that the provisions of the Convention would not suffice in the information age.The World Intellectual Property Organization (WIPO) Copyright Treaty was drafted and ratified in 1996 in order to help copyright law keep pace with the changing times.  The United States joined the WIPO Copyright Treaty through the implementation of the Digital Millennium Copyright Act (DMCA) and also created the Uniform Computer Information Transactions Act.While the DMCA would grant protection to software and place restrictions on the use of encryption circumvention programs, among other provisions, neither the WIPO Copyright Treaty nor the DMCA contain provisions providing direct guidance as to how the treaties should be applied in cross-border disputes.  The choice of law analysis involved in international copyright litigation has proven difficult for courts in the United States and this can be seen in the varied opinions as to how to interpret certain articles of the Berne Convention.  This choice of law analysis proves critical to international disputes because the minimum standards of the Berne Convention allow for variation among signatory nations. The European Union responded to the requirements of the Berne Convention by creating the Directive on Copyright and Ecommerce. The Copyright Directive requires member states to harmonize their laws concerning the reproduction right, the right of communication to the public, the distribution right, and technological measures against circumvention of copyright management and protection systems. Article One outlines the intended scope of the Directive. Article Two sets forth a broad, comprehensive definition of the reproduction right, covering all relevant acts of reproduction, on-line or off-line, in material or immaterial form.Article Three aims to achieve harmonization of the member states’ laws concerning the right of communication to the public, providing a broad, comprehensive definition of “communications to the public” that addresses the interactive nature of the digital environment. Article Four seeks to achieve harmonization of the right of distribution for all types of works where this has not yet been done, and Article Five sets out exceptions to the rights set forth in Articles One through Four.Articles Six and Seven address the protection of technological measures and rights-management information. Article Six sets forth member states’ obligations as to technological measures, and Article Seven addresses member states’ obligations concerning rights-management information.On February 14, 2001, the European Parliament formally adopted the European Copyright Directive. The Copyright Directive seeks to solidify the existence of an EU-wide “internal market in copyright and related rights,” emphasizes e-commerce, and creates a legislative framework that will be able to handle the impending challenges of the digital revolution.
The Caribbean
The establishment of Copyright policies and laws in the Caribbean region has received some attention in recent times because of the current trends in International Intellectual Property law and policy which see insistence on greater accountability and compliance with IP regimen especially with regard to the internet economy which encircles modern life. For the purpose of this discourse the reference to Caribbean countries is limited to the members of the Caribbean Community  and further refined to exclude Suriname and Haiti which have Civil law systems of judicature which require further and in depth research in order to make substantive evaluations .         Copyright policies and national laws are an important issue within the context of the countries of the Caribbean Community (Caricom) which in recent times have become more aware of the need to pay attention to the dynamics of International Intellectual Property Law and Policy, and to be cognizant of the effects that these areas have on them.         Within at least the past ten years the Caribbean region has experienced pressures to comply with International Intellectual Property regimes such as the TRIPS agreement, subscription and compliance with which became a requirement of the World Trade Organization (WTO) in order that developing countries should benefit from trade arrangements made through the WTO. Most Caricom countries are members of the WTO and were therefore required to enact legislation which gave effect to the TRIPS agreement. A few countries have attempted to enact legislation which reflects the requirements of the TRIPS agreement, Jamaica and St Lucia have modelled the more successful laws while Trinidad and Tobago has enacted strong copyright laws, most other countries have had partial or no enactment or compliance with the TRIPS even though most have signed on to the agreement. In the face of the reluctance or inability of most countries in the region to comply with the requirements of the TRIPS agreement, the question arises as to what factors in the legal and regulatory sphere create this dissonance between the TRIPS compliance and the implementation of laws which would reflect its requirements. Equally important is the question of what social, political, cultural and economic factors underwrite the absence of policies which are conducive to the creation of copyright policies and laws within Caricom Countries. It is quite clear that the legal and regulatory framework for intellectual property in the Caribbean is quite underdeveloped and of a piecemeal nature. Each country has its own laws and these range in strength, focus, modernity and flexibility. Enforcement, the twin sister of the law, possesses the same characteristics. In example, Guyana has one of the oldest Copyright laws dating back to 1956 because it was acquired through reception from the British legal system after Guyana became independent in 1966, in spite of WTO membership and the TRIPS agreement, there have been no new legislation, no supporting mechanisms or organizations, no awareness programs and the law is generally ignored. Jamaica on the other hand has put stringent Copyright laws in place and has also put strong supportive mechanisms and has perhaps the most active and progressive system for the promotion and enforcement of copyright laws in Caricom. St Lucia has legislation which is progressive, encompasses many developmental issues and has a modern outlook. The actual workings of the law will make for interesting observation.
The socio-economic background of Caribbean IP  
     On January 1, 2006, the CSME was formally established and adopted by 12 member countries (Belize, Barbados, Grenada, St Kitts and Nevis, St Lucia and St Vincent and the Grenadines, Jamaica, Suriname, Antigua and Barbuda, Guyana, Dominica, Trinidad and Tobago. The schedule of implementation required a formal framework to be in place by 2008, with the final completion date set for 2015. The CSME was originally proposed by CARICOM in the 1989 declaration of Grand Anse and was conceptually and legally formalized in the 2001 Revised Treaty of Chaguaramas. The Revised Treaty included provisions for the establishment of the Caribbean Court of Justice, which was formalized in 2005.The CSME was established with the intention of creating a cohesive framework through which the region could become internationally competitive. The main objectives of the CSME are set out as follows: “Full use of labour (full employment) and full exploitation of the other factors of production (natural resources and capital); competitive production leading to greater variety and quantity of products and services to trade with other countries. It is expected that these objectives will in turn provide improved standards of living and work and sustained economic development.”  It is submitted that in order for the objectives to be met in terms of growth and sustainable development, IPRs and responsibilities must be moved from their current state of disorder to one of productive engagement and holistic and regulated viability. It is inconceivable that the CSME will be able to achieve a high level of success in its implementation without the establishment of a legal and regulatory framework that promotes development of innovation in science, technology and other areas, while espousing the protection of rights and enforcing responsibilities in IP (Inniss. A (2012) 3 W.I.P.O.Journal., Issue 2 © 2012 Thomson Reuters (Professional) UK Limited).CARICOM and the TRIPs Agreement             The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement adopted within the frame work of the World Trade Organization (WTO) that establishes minimum standards for many forms of IP. It was negotiated as part of the Uruguay Round of General Agreement on Tariffs and Trade (GATT) trade negotiations and adopted in 1994.TRIPS provides requirements for national legislation in the IP area, including copyright, geographical indications, industrial designs, trademarks, patents, and trade secrets. TRIPS also specifies enforcement procedures, remedies and dispute resolution procedures. This agreement introduced IP law into the international trading system and remains arguably the most comprehensive international IP agreement. An analysis of IP legislation in 11 Latin American and Caribbean countries titled“Has the Implementation of the TRIPS Agreement in Latin America and the Caribbean Produced Intellectual Property Legislation that Favors Public Health[1]? determined that these countries are not adequately taking advantage of TRIPS flexibilities. In its analysis, the study considered the term of patents issued, patentable subject matter, transition periods (time until legislation was enacted),reversal of the burden of proof of patent infringement ,exhaustion of rights, compulsory licensing and the early working exception (which allows a country to complete all procedures necessary to register a multisource product before the original patent expires).The study concluded that access to medicines might be eroded in the future if new agreements establish more restrictive rules for IPRs. It recommended that CARICOM countries improve interaction between health and patent offices, be given technical support to assist in maximizing public health benefits in national legislation and trade negotiations, and prioritize access to medicines when determining how best to protect innovation. A 2005 Commonwealth Secretariat report by Dianne Daley titled Implementation of the Doha Decisions on Access to Medicines at Affordable Prices by Countries with no or Insufficient Manufacturing Capacities: The Caribbean Study[2] provides country-specific guidance and information for the following Caribbean countries: Antigua and Barbuda, Belize, Dominica, Grenada, Guyana, St Kitts and Nevis, Saint Lucia, St Vincent and the Grenadines, the Bahamas and Trinidad and Tobago.
     This information is pertinent to the issue of Copyright in so far as it demonstrates the dynamics of the International IP environment in which the Caribbean countries operate in 2013. There has been little change in the ways in which the countries in the region operate since the time of the report. International pressures have in fact increased on countries to comply with standards, even where no formal agreement exists. This situation was illustrated in September 2012 by the fracas between the British and Guyana governments over the wholesale copying of schoolbooks produced by a British publisher. The Guyana government openly stated its intention to contract the photocopying of school texts for distribution in the public schools for large sums of money in contravention of the country’s laws. The publishers reacted by filing a court action while at the same time engaging diplomacy through the British government .It is to be noted here that even though Guyana is a signatory to the WTO and the TRIPS agreement, no laws have been passed that bring the standards of TRIPS into effect and the reliance by the plaintiffs on the Berne Convention for relief had the same effect since its minimum standards had not been enacted. The end result was that economic diplomacy resolved the matter because the Guyana government could ill afford to endure any sanctions imposed upon it by the British government over the issue, and it was forced to scrap the plan to purchase photocopied books. It is quite clear that developed countries are no longer willing to sit back and allow developing countries to flagrantly disregard copyright and other IP agreements.    

   The Influence of Culture and Politics    
   It is hardly debatable that the variations in copyright laws across the Caribbean are the result of the peculiarities of the various jurisdictions compounded by the lack of a regional regulatory scheme. It is also trite knowledge that Caribbean musicians and other artists often struggle to obtain adequate protection of their productions and where they do, it is localized within specific countries. This means that while a Jamaican musician may have protected rights in Jamaica, this will not necessarily apply to the same work in Guyana or Antigua, and so on; though section 3 of the Jamaican Copyright Act no 5 of 1993 (Jamaica Copyright Act, 1993), specifies that where a work has been first published in a specified country it shall be an offence in Jamaica to republish it without permission. A January 2010 report of the International Confederation of Societies of Authors and Composers (CISAC) revealed that royalties accruing to Caribbean music and Art in 2009 had dipped by 27 percent to Euros 3.3 million. CISAC reported that it had been some three years since such a marked decline had occurred in the Caribbean and suggested that apart from the worldwide economic decline; the inability of some Caribbean governments to deal with their Intellectual Property issues had contributed significantly to these problems. Trinidad and Tobago, Jamaica, Cuba, the Dominican Republic, Barbados and St. Lucia are members of CISAC which is an international organization promoting the rights of authors and composers while others are less than interested. Four years later, there is no reported improvement in this situation.
                         There is some loose suggestion that the culture of the Caribbean is laid back and non-aggressive and that sharing everything without regard for ownership is the norm. This it has been said is the reason for the disregard for the rights of others in terms of property. This is a notion which has been imported from other developing countries and or perpetuated by the portrayal of the Caribbean as a region of sun, sand ,sea , unbridled fun and little care or responsibility , and with which this writer disagrees entirely (Inniss.A , Essays in Caribbean Law and Policy:A Comprehensive Discourse, 2011). The Caribbean Community as has been defined for this discussion comprises countries which with the exception of Haiti and Suriname have a Common Law history and in which the Common law operates to date. Strong property rights are a part of the Common Culture and this translates very easily to the intangibles of IP. The politics of IP are closely related to the economic conditions of the countries to which these regulations apply, and this seems to be the greatest point of contention. Governments are hard put upon to find methods which will allow citizens to access materials which are subject to IPRs for the purposes of education, livelihood, health and other areas which are now part of everyday life while adhering to stringent international agreements and simultaneously not placing onerous burdens of compliance on citizens.  As previously indicated many Caribbean territories do not have the human and intellectual resources to investigate, review and to construct the policy bases for Intellectual property and do not have the wherewithal to garner such resources (Inniss, Essays in Caribbean Law and Policy:a comprehensive discourse, 2011)

.Creating the policy based approaches          
Throughout the years there have been a number of attempts to regulate the varied forms of intellectual property usage by the establishment of conventions such as the Berne and Paris Conventions to which signatories agreed to implement laws within their own countries which would reflect the intention of those agreements and give reciprocity among signing nations. The World Trade Organization and the famous TRIPS agreement (Trade Related Aspects of Intellectual Property Rights) to which developing countries are forced to adhere if they wish to benefit from trade agreements with developed countries, is a stark reminder of the financial power of the intangible known as intellectual property rights and the quest for absolute control over it (Inniss, Copying, Copyright and the Internet: The issue of internet Regulation with regard to Copying and Copyrigh, 2011). Caricom and its Caribbean Single Market and Economy Secretariat are yet to respond to the growing complexity of International Intellectual Property in any comprehensive manner and to proffer its citizens some form of leadership on the issues. Internet law is as yet underdeveloped in the region and the lack of investment in technological research and development will serve to ensure that no forward movement is made in this direction.
                              The task of creating intellectual policies and laws for the Caribbean is not simply a question of the wholesale importation and application of rules which come from one regimen or another. Countries must look at their economic situations and policies in order to determine what plans would best serve their productive and developmental interests. This is especially related to the TRIPS agreement to which most are signatories and which has exceptions which are arguably useful in providing some leeway for them to pursue their goals while in compliance with the international obligations. This is not to suggest that it is necessary to frame the entire IP regulatory framework on the TRIPS requirements and exceptions or to engage TRIPS plus arrangements[5], the creation of public policy and the ensuing laws must take into account what constitutes the best value for the people who must earn a livelihood, performers, producers, resellers, creators and end users. It must also be attentive to the creation of a culture that is receptive to a new modus operandus and be mindful of the need to acquire buy-in (Bryson, 2011) so that the system would be more effective. It is a mistake made by many policy makers who merely legislate change and expect the public to adhere overnight. The value of copyright must be sold to the public as well as legislated in order to be successful. It is necessary to avoid the sui-generis creation and application of IP laws.            To conclude our discourse this evening, I quote the acclaimed American publisher Jason Epstein, “Our civilization has been enriched, preserved, interpreted and handed down to us mainly by writers. Our future too is in their hands. Copyright is the sine qua non of their survival. Without it, writers cannot afford to write, and how then shall we learn who we are? 

Sunday, October 6, 2013

Some Notes on Developing Policy and Law in Caribbean Intellectual Property

By Abiola Inniss

In recent years, the Caribbean has been placed under a considerable amount of pressure to comply with international regimen on intellectual property rights.
This is in no small part the result of World Trade Organization requirements that signatory countries to its agreements must also become TRIPS compliant (WTO Agreement on Trade-Related Aspects of Intellectual Property Rights). There is also little question that the pressures result from the movement of a world economy which is now heavily based on the creation and use of technologies that are based on the internet and the digitization of information. In this situation, data becomes a totally pliable commodity and the demand for multimedia products continues to expand at a breathtaking rate. Along with this comes the demand for greater protection of the intangibles which fall into the category of intellectual property.      

Some governments worldwide place prime importance on research, development and innovation as an essential component of national development, prime examples of which may be found in countries such as India, China, Singapore and South Korea, and this list is by no means exhaustive of countries engaging in this kind of activity.

Caribbean countries, on the other hand, have yet to explore the possibilities of research, development and innovation and are on the receiving end of developed technologies and all of the demands and restrictions which come with them. This is an issue which I explored in the WIPO Journal 2012 , and which is wide open for much further discussion and debate. It suffices to say at this point that this lack of attention to an area of endeavor of such great magnitude leaves the region in a position that is weak and disjointed and subject to the whims and fancies of International power brokers in the area.

As a means of compensating for this insecurity, several countries within the region, as elsewhere, have tried to comply with international regimen on intellectual property rights such as the TRIPS agreement. They have also  begun to implement legislation which fits the requirements set out under it to the point of going over and above them in what are called TRIPS plus arrangements. The conception of these countries seems to be that life will become much easier for them in their abilities to access much needed resources and that the international community will deal with them in a more reasonable and lenient manner.

There is no indication, however, that developed countries are at all interested in the issues that concern developing countries to the point of offering any concessions in this area. The constant debates and battles to be heard in negotiations at international fora such as the United Nations and the World Trade Organization are a clear indication of the disinterested attitude.

Developing countries that attempt to comply with these arrangements without careful consideration of the effects on their societies have all but signed their collapse into a chaotic policy and legislative abyss. There are several examples of countries in the developing world which have fallen into this trap, Kenya is one such example. The Kenyan government has led Africa in the area of IPRs and has put laws in place to comply with IP regimen, only to find that its lack of policy planning has caused it to have to revisit its laws and to do patchwork correction. According to a study done by Dr. Patricia Kameri-Mbote[1], there is little indication as yet of the extent to which these laws have contributed to Kenya’s national development.

The creation of legislation which deals with IPRs and compliance with international regimen is a complex task that must be approached from both scientific and social perspectives.The process must also investigate the deep-rooted needs of societies for the development of their human resources, the preservation of culture, and economic and social advancement.

This means that policy frameworks and policy must be developed which come from an understanding of the unique circumstances which envelop each society, and legislation planned to suit. Caribbean countries intent upon legislative compliance must consider whether their short-term goals of appearing to be up to date with international rules will at all benefit the longer term viability of their economic and social development. It cannot be overemphasized that the leadership of Caricom is quintessential in the creation of Caribbean intellectual property policy guidance for its members.

[1]  Dr Kameri-Mbote prepared a study titled Intellectual Property Protection in Africa: An assessment of the status of laws, Research and Policy Analysis on Intellectual Property Rights in Kenya (2005). Retrieved from http://www.ielrc.org/content/w0502.pdf