Thursday, May 9, 2013
Thursday, May 2, 2013
Connecting the Internet to Intellectual Property in the Caribbean
By Abiola Inniss
The last decade has seen the emergence of the internet at a pace that has left those who use it scrambling to grasp at the enormity of its existence. Policy makers, rights holders, legislators, content creators, users, producers, and a host of others while caught up in its momentum, are still uncertain about how to treat with the issues of regulating aspects of its usage. Some proponents of regulating the usage of the internet think that the interests of all parties should be balanced as fairly as possible through the use of regulations, while others feel that the free market should dictate its development, letting the chips fall where they might. The issue is not simply one of regulating the usage of the internet by giving rights to those who have or claim entitlement, and making everyone else pay for access to those materials they wish to use, it goes far deeper into complex issues and intersects in a number of areas as it does so.
The field of international intellectual property and its attendant laws and policy issues have effects that reach from the top levels of management of large International companies, to the ordinary woman sitting in an internet café in a Caribbean country, making an internet call to the United States about the next expected remittance, or the offshore internet gaming employee in Antigua or the Bahamas. Issues of international trade law, consumer laws and protection, private international law, international finance and local regulatory provisions (where these exist), all combine to create a convoluted mass through which considerable navigation skills (mostly legal) are needed to make any sense of it.
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. 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 WIPO World Intellectual Property Indications Report of 2012 has once again reflected the lack of any significant growth in research and development through patent filings in the Caribbean Region and augments this position. The list of top twenty country offices that reflected increased patent registrations belonged mostly to developed countries with a few from Asia, namely China and India, though Brazil and Mexico did present a notable number of registrations. The reports from past years ( available at www.wipo.int) indicate that there is a direct correlation between research and development and patent filings, both of which have been instigated by the private sector and the governments of the countries listed.
I have discussed this issue at length in the WIPO Journal issue of November 2012 and am still firmly disposed to the position that the responsibility for encouraging innovation and research remains with Caricom and its leaders. Just as CARDI (Caribbean Agricultural Research and Development Institute) was founded, a regional institute for the development of technological innovations needs to be established. No single country within the Caribbean region has the capacity to single handedly tackle the issues of research and development at the level and pace required for any competitive contribution in this field, so that insularity and national pride are of no use to Caribbean citizens in this situation.
Connecting the internet to intellectual property in the Caribbean requires the political and intellectual will of those in authority to create the opportunities for this to happen by developing research and development collaborative agreements, and by establishing the facilities for the purpose. It goes without saying that this is a matter of great urgency. It is left to be seen how the policy makers will act.
By Abiola Inniss
The last decade has seen the emergence of the internet at a pace that has left those who use it scrambling to grasp at the enormity of its existence. Policy makers, rights holders, legislators, content creators, users, producers, and a host of others while caught up in its momentum, are still uncertain about how to treat with the issues of regulating aspects of its usage. Some proponents of regulating the usage of the internet think that the interests of all parties should be balanced as fairly as possible through the use of regulations, while others feel that the free market should dictate its development, letting the chips fall where they might. The issue is not simply one of regulating the usage of the internet by giving rights to those who have or claim entitlement, and making everyone else pay for access to those materials they wish to use, it goes far deeper into complex issues and intersects in a number of areas as it does so.
The field of international intellectual property and its attendant laws and policy issues have effects that reach from the top levels of management of large International companies, to the ordinary woman sitting in an internet café in a Caribbean country, making an internet call to the United States about the next expected remittance, or the offshore internet gaming employee in Antigua or the Bahamas. Issues of international trade law, consumer laws and protection, private international law, international finance and local regulatory provisions (where these exist), all combine to create a convoluted mass through which considerable navigation skills (mostly legal) are needed to make any sense of it.
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. 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 WIPO World Intellectual Property Indications Report of 2012 has once again reflected the lack of any significant growth in research and development through patent filings in the Caribbean Region and augments this position. The list of top twenty country offices that reflected increased patent registrations belonged mostly to developed countries with a few from Asia, namely China and India, though Brazil and Mexico did present a notable number of registrations. The reports from past years ( available at www.wipo.int) indicate that there is a direct correlation between research and development and patent filings, both of which have been instigated by the private sector and the governments of the countries listed.
I have discussed this issue at length in the WIPO Journal issue of November 2012 and am still firmly disposed to the position that the responsibility for encouraging innovation and research remains with Caricom and its leaders. Just as CARDI (Caribbean Agricultural Research and Development Institute) was founded, a regional institute for the development of technological innovations needs to be established. No single country within the Caribbean region has the capacity to single handedly tackle the issues of research and development at the level and pace required for any competitive contribution in this field, so that insularity and national pride are of no use to Caribbean citizens in this situation.
Connecting the internet to intellectual property in the Caribbean requires the political and intellectual will of those in authority to create the opportunities for this to happen by developing research and development collaborative agreements, and by establishing the facilities for the purpose. It goes without saying that this is a matter of great urgency. It is left to be seen how the policy makers will act.
Saturday, October 6, 2012
The Guyana Government and the protection of Copyright laws.
By Abiola Inniss
Recent weeks have found the Intellectual Property scene in Guyana astir with activity .According to reports the Guyana Government declared that as a matter of policy it would be spending millions of dollars to procure bootlegged British textbooks from an handful of local copy artists with large scale printing facilities. This bold declaration was made, it claimed, as a means of getting the most for the dollar and supposedly for the benefit of the nation. The Government made this declaration in the face of the existing Copyright Act of 1956 (Cap, 74) which states as follows: " In accordance with the preceding subsection, but subject to the following provisions of this Act, the copyright in a work is infringed by any person who, not being the owner of the copyright, and without the licence of the owner thereof, does or authorises another person to do, any of the said acts in relation to the work in the United Kingdom or in any other country to which the relevant provision of this Act extends." This of course includes copying for the purpose of commercial distribution. For interested readers, the entire Act may be found at http://www.wipo.int/wipolex/en/text.jsp?file_id=229365.
It is important to note that this Act became part of the laws of Guyana after independence in 1966 by way of adoption, and that there have not been any amendments to it by any Governments since then. Even though it may be old law, it is still the law, and this brass faced declaration of disobedience of Guyana's laws by its own Government as a matter of policy, certainly left many informed on-lookers aghast at this new record of economic , diplomatic and legal turpitude that extended this time, beyond Guyana's borders into the waters of International Intellectual Property law and policy. The reaction of the International Publishers was swift, formal diplomacy was engaged, followed by a court order and by Government's admission more talks. The most interesting aspect of these hasty activities is certainly the reliance upon Conventions and Treaties in the hope of finding a remedy in the current situation. The Berne Convention to which Guyana is a signatory and which is an agreement that gives countries reciprocal treatment in intellectual property protection, was cited as a refuge for those seeking relief, as was the Revised Treaty of Chaguaramas. Legal scholarship will however point out that the Berne Convention is not self- executing, meaning that the signatory countries are expected to make the necessary amendments to their national laws in order to accommodate reciprocity.
The Revised Treaty of Chaguaramas under Article 66 Protection of Intellectual property rights , sets out a series of aspirations that shall be pursued by the COTED (Council for Trade and Economic Development),none of which deigns to legislate IP rights for any of the members of Caricom and certainly does not give protection of any kind to anyone. Countries retain their sovereign right to legislate for themselves and that remains the rule. It has long been the contention of this writer, that this 1956 Act is woefully inadequate for the local and international circumstances in which the country and its citizens now operate, and that there is the need to create legislation that balances the interests of citizens, producers, artists ,resellers and others who may hold title in Intellectual Property Rights. This undertaking cannot constitute a single piece of legislation, but must be a series of laws that deal with modern issues such as indigenous, rights , modern patents, internet laws, private international law, consumer laws and international business law. Some countries within Caricom have endeavoured to do just this, and have managed to create forward looking legislation in this area .Jamaica , Trinidad and St Lucia stand out as examples where this has been done.
In the present situation, diplomatic filibustering by the British has been very effective in making the Guyana Government scurry for cover under talks and will most likely resolve this issue.
The new economic world order is one in which IP rights are of premium importance and on which the international community will no longer sit back and ignore or accept excuses from so-called developing countries. The current world trends demonstrate that where the Guyana government refuses to adopt policies, laws and actions that would bring it in line with internationally accepted practices, it will be subject to diplomatic sanctions .The outcome of the court case, if there be one, will be awaited with interest, but this matter will certainly be resolved by economic diplomacy. In the meantime, as I have expounded and advocated for years, Guyana must balance the interests of its citizenry with rights and responsibilities in intellectual Property Law, our place in the world is dependent upon it.
By Abiola Inniss
Recent weeks have found the Intellectual Property scene in Guyana astir with activity .According to reports the Guyana Government declared that as a matter of policy it would be spending millions of dollars to procure bootlegged British textbooks from an handful of local copy artists with large scale printing facilities. This bold declaration was made, it claimed, as a means of getting the most for the dollar and supposedly for the benefit of the nation. The Government made this declaration in the face of the existing Copyright Act of 1956 (Cap, 74) which states as follows: " In accordance with the preceding subsection, but subject to the following provisions of this Act, the copyright in a work is infringed by any person who, not being the owner of the copyright, and without the licence of the owner thereof, does or authorises another person to do, any of the said acts in relation to the work in the United Kingdom or in any other country to which the relevant provision of this Act extends." This of course includes copying for the purpose of commercial distribution. For interested readers, the entire Act may be found at http://www.wipo.int/wipolex/en/text.jsp?file_id=229365.
It is important to note that this Act became part of the laws of Guyana after independence in 1966 by way of adoption, and that there have not been any amendments to it by any Governments since then. Even though it may be old law, it is still the law, and this brass faced declaration of disobedience of Guyana's laws by its own Government as a matter of policy, certainly left many informed on-lookers aghast at this new record of economic , diplomatic and legal turpitude that extended this time, beyond Guyana's borders into the waters of International Intellectual Property law and policy. The reaction of the International Publishers was swift, formal diplomacy was engaged, followed by a court order and by Government's admission more talks. The most interesting aspect of these hasty activities is certainly the reliance upon Conventions and Treaties in the hope of finding a remedy in the current situation. The Berne Convention to which Guyana is a signatory and which is an agreement that gives countries reciprocal treatment in intellectual property protection, was cited as a refuge for those seeking relief, as was the Revised Treaty of Chaguaramas. Legal scholarship will however point out that the Berne Convention is not self- executing, meaning that the signatory countries are expected to make the necessary amendments to their national laws in order to accommodate reciprocity.
The Revised Treaty of Chaguaramas under Article 66 Protection of Intellectual property rights , sets out a series of aspirations that shall be pursued by the COTED (Council for Trade and Economic Development),none of which deigns to legislate IP rights for any of the members of Caricom and certainly does not give protection of any kind to anyone. Countries retain their sovereign right to legislate for themselves and that remains the rule. It has long been the contention of this writer, that this 1956 Act is woefully inadequate for the local and international circumstances in which the country and its citizens now operate, and that there is the need to create legislation that balances the interests of citizens, producers, artists ,resellers and others who may hold title in Intellectual Property Rights. This undertaking cannot constitute a single piece of legislation, but must be a series of laws that deal with modern issues such as indigenous, rights , modern patents, internet laws, private international law, consumer laws and international business law. Some countries within Caricom have endeavoured to do just this, and have managed to create forward looking legislation in this area .Jamaica , Trinidad and St Lucia stand out as examples where this has been done.
In the present situation, diplomatic filibustering by the British has been very effective in making the Guyana Government scurry for cover under talks and will most likely resolve this issue.
The new economic world order is one in which IP rights are of premium importance and on which the international community will no longer sit back and ignore or accept excuses from so-called developing countries. The current world trends demonstrate that where the Guyana government refuses to adopt policies, laws and actions that would bring it in line with internationally accepted practices, it will be subject to diplomatic sanctions .The outcome of the court case, if there be one, will be awaited with interest, but this matter will certainly be resolved by economic diplomacy. In the meantime, as I have expounded and advocated for years, Guyana must balance the interests of its citizenry with rights and responsibilities in intellectual Property Law, our place in the world is dependent upon it.
Friday, August 31, 2012
Saturday, June 23, 2012
Considering International IP development trends and economic growth: Wither Caricom?
BY Abiola Inniss LLB,LLM,ACIArb
In a recent article published in the WIPO ( World Intellectual Property Organization) Journal of May 2012 , titled "International Intellectual Property law and policy: Can the Caribbean region capitalize on current global developmental trends in IP rights and innovation policies?" this writer examined the WIPO report on the creation and exchange of intellectual property rights (IPRs) among developed and developing countries published in the last quarter of 2011and asked the question " In view of the current trends in innovation and IP development policies worldwide, how might the Caribbean region (Caricom) capitalize on current developments for economic growth?’ This question is of dire importance to the policy makers and citizens of the region who ought to become alarmed at the state of regional lassitude in this critical world economic sphere, especially since new technologies, the exchange of information, and knowledge management continue to develop at an astounding pace. The following paragraphs contain a few summaries of parts of the original published article ( available here http://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?productid=412405&recordid=4050)and give additional commentary.
In the examination of the The WIPO report for 2011 titled “The changing face of innovation” that focused on the growing trend of creation and exchange of IPRs among both developed and developing countries, it was disclosed that there was a growing demand for IPRs, which was directly related to the growth in innovation especially in the area of knowledge markets based on IP rights, a key element of which is the frequent trading and licensing of IP rights among firms. Royalty and licensing fee revenues internationally, had grown from 2.8 Billion USD in 1970 to 27 Billion in 1990 then to 180 Billion in 2009, far greater than the global GDP and there was also the observation of new market functionaries in the business of Intellectual property rights, such as brokerages and clearinghouses. Firms had specialized in particular areas of endeavor and had increased their levels of innovation and efficiency while increasing controls over which kinds of information were released or kept confidential. Maximized learning in open innovation initiatives to allow for greater creativity was also found to be a significant factor along with the control of information.
Other key developments include the patenting of complex technologies, these are defined as technologies that comprise several different areas, each of which is patentable and which may have separate owners. This is especially applicable to communication technologies such as software, optics, audio-visual technology, tablet computers and smart phones, which have given rise to companies creating large portfolios of patent rights to the extent that it is felt that the process of innovation is significantly slowed because of the overburdening of patenting systems. It is proposed that efficient patent institutions are essential to the functioning of this system in order that the growth of innovative systems might not be hampered.
The report revealed that several countries established systems and policies that would harness public research for innovation such as the creation of incentives for universities and other public research organizations which create patents and go the further step of commercializing them with the result of an increased rate of patent applications by these institutions. It was also found that filings by Universities and Public Research Organizations under the WIPO Patent Cooperation Treaty increased from minimal in the 1980's to more than 15000 in 2010, which could be attributed to the high income economies such as France, Germany, Japan , the United Kingdom, and the United States, though middle income countries have also made significant contributions to this trend.
Among the important developments in this area suggested by this WIPO document were that while the high income countries maintain high levels of investment in research and development (R&D) low and middle income countries have increased their levels of participation and spending by 13 percent between 1993 and 2009. Increased publications in peer-reviewed journals in the relevant fields of science technology with co authorship of an international nature along with a list of patents with inventors from more than one country to be a clear indication of increased international collaboration in those fields. It also concluded that societies benefitted greatly from the collaboration in research and development, which lead to IPR creations and new technologies and concluded that joint IP production was usually the result of research and development alliances. Multilateral firms increasingly locate their research and development facilities within other countries, which has resulted in increased economic activity and growth in middle-income countries. Although, admittedly, it reports that among the difficulties with the data were the difficulties in distinguishing between open innovation strategies and established practices of collaboration (e.g joint marketing) and the inability to trace informal knowledge exchanges such as internal policies within firms and exchanges between firms.
The argument is made however, that IP protection can shape creative and innovative policy in a substantial way: "IP protection is a policy initiative that provides incentives for undertaking creative and innovative activity. IP laws enable individuals and organizations to obtain exclusive rights to their inventive and creative output. Ownership of intellectual assets limits the extent to which competitors can free ride on problem-solving and related information, enabling owners to profit from their efforts and addressing the appropriability dilemma at its heart…..IP rights are an elegant means for governments to mobilize market forces to guide innovative and creative activity. They allow decisions on which innovative opportunities to pursue to be taken in a decentralized way. To the extent that individuals and firms operating at the knowledge frontier are best-informed about the likely success of innovative projects, the IP system promotes an efficient allocation of resources for inventive and creative activity"
This is all very compelling information that favors the implementation of IP rights, policies and laws that can forge the development of this industry in the Caribbean region and which are critical to the development of the region. The major question is, what is the policy plan of the regional governance organization as regards the development of IP policies , strategies, and a cumulative legal and regulatory framework? There are several economic, political and sociological factors that have stymied the process of IP development in the Caribbean region (dealt with in detail in the WIPO Journal May,2012 here: http://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?productid=412405&recordid=4050) but the time has surely arrived to craft the policy and legal framework which will allow the Caribbean region to partake in this area of global development In recent years there has been growing recognition of the significance of Indigenous IPR's and IP issues in climate change , while Caribbean governments have discussed these issues, there has been far too much talk and too little effort in garnering expert analyses which could help in the formulation of regional policy. There is the imminent danger of permanent relegation of the region to mindless consumerism of the dictates, policies and technologies of the rest of the productive world, and the eventual loss of any notable identity that excepts sun, sand and sea. Caribbean policy makers need to quickly grasp that Intellectual Property issues cannot be wished away and must be tackled head on right now.
Bio data
Abiola A.A.Inniss is a leading analyst, researcher and author on Caribbean Intellectual Property and the founder of the Caribbean Law Digest Online. She is a law teacher, alternative dispute resolution practitioner and presenter who has written extensively on Caribbean IP law and other areas of Caribbean law.Among her publications are two books on law, one on Public speaking ,several articles , issue briefs , academic papers and book reviews. She has lectured and presented papers in the Caribbean and the United States of America on Caribbean Intellectual Property, reviewed conference papers and conducted research. She is currently reading for a PhD at Walden University U.S.A.
Monday, January 23, 2012
Alternative Dispute Resolution in the Caribbean: a cultural conundrum-Excerpts from a Guest lecture given at DePauw University, Indiana ,USA , 11/10/2011
Thank you for the opportunity of speaking to you on a subject that has been of great interest to me and of great importance to the peoples of the Caribbean region.
I know that when many people think of the Caribbean, the immediate images of islands surrounded by sand and sea bathed in sunshine fun and frolic come to mind; that is what we see on TV By extension the exotic jungles of the South America in particular my native land Guyana , the only English speaking country on the continent of South America, may also capture the imagination as a paradise of the kind propagated in the movie Tarzan, very little is known about the cultural intricacies of the region in Western civilization outside of international organizations such as The United Nations and so the substantive issues of community life and conflict ,and of necessity conflict resolution make for a fascinating and important study.
For the purpose of my discourse, I am confined to the fifteen countries which are members of Caricom the formal name of which is the Caribbean Community and which are English speaking with the exception of Suriname and Haiti which are associate members. For further information you may log on to Caricom.org .In order to grasp the concept of this cultural conundrum as I have chosen to call it, we have to take a brief look at the legal system in the region. The English speaking Caribbean inherited much of its cultural norms and its legal system from the British colonizers, so that just like the United States, it has a common law system which is a direct descendant of the English common law system and some of the countries still have close ties to the British since they retain the Privy council as their final court of appeal, others have opted to have the newly created Caribbean Court of Justice as their final Court of Appeal. The history of the region however carries major contributions from the Dutch, Spanish, French and Portuguese as all these super powers from the fifteenth century and onwards colonized all the countries at some point or other and have left significant residue of their legal system in several cases, Guyana for example retains the Dutch land law system and St Lucia, a mixture of French civil law and English common law. The formal resolution of disputes has been rooted in the court system and it is only recently (within the past ten years or so) that widespread recognition has been given to alternative dispute resolution as a formal means of resolving issues. I have used the term ‘formal means of resolving issues’ because ADR is only now receiving official recognition by some countries as a valid means of resolving disputes alongside of the legal system and in many instances as a court connected measure. This is true in countries such as the Cayman Islands, Trinidad, Guyana, Barbados and Jamaica, other countries in the region. The civilization of the Caribbean region was however, created by several different means, first there were the indigenous peoples called Amerindians, then with European colonization there came slavery, which took Africans to the region, and this was followed by Indentureship of natives of Portugal, China and India through formal agreement with their governments and was a paid arrangement to get workers for sugar and rice plantations and other crops. These peoples brought their culture and traditions, their problems and disputes as well as their means of settling disputes. These were termed informal means of dispute resolution, since they did not receive state sanction and were largely ignored as a creole cultural idea which had little to do with the proper regulation of society. These mechanisms thrived in the post slavery period where village elders would be called upon to settle disputes as a panel, or in Amerindian communities, the tribal chief would preside over a matter, headmasters and postmasters were also considered important and respectable persons in whom confidence could be reposed to settle matters. These could range from family disputes to street vending, to livestock and other issues related to common tenancy. In the cities where other issues, such as noise, common rights of way and landlord and tenant problems arose, church leaders were called upon to act as arbiters or mediators as necessary, this was even further delineated by the separate cultural norms of the people who came, the Chinese had their own methods for their internal disputes, the Indians would use the Hindu priest, the Muslims would have the head of the Mosque, Africans would have their religious elders . Caribbean civilization and culture from its inception has always had some form of dispute resolution which has been indigenous to its different populations. Modern times however saw the westernization of ideas which deemed cultural forms of dispute resolution to be old fashioned and saw a heavy dependence on the court system.
We now come to some of the current problems in the areas of society for which alternative dispute resolution may have some answers.
As a result of the westernization of ideas and the dependence on the courts to settle all disputes there has been tremendous overburdening of the justice system. And this is discussed in the article on Restorative justice which deals of course with criminal matters
Crime and the punishment of it has had a standard form regionally with some variations in the form of the application of the death penalty or life imprisonment for serious and heinous crimes, but within the usual schemata of imprisonment or fining (determinate sentencing) for wrongdoing. World trends today suggest that some developed countries as well as developing ones are pressed by the necessity to find alternatives to the traditional scheme of justice dispensation.
This is not simply the result of the musings of well-paid researchers whose sociological theories, however abstract, manage to find favour with the aspiring intellectual elite in governments and so are visited upon the unsuspecting populace who have little means of extricating themselves. The fact is that criminal law has always struggled to balance the issuance of punishment with the offence, as can be seen throughout the development of the common law as it has sought to adjust with the changing times.
A simple example of this would be the constant complaints that we hear about the sentences given in the courts both at the superior and magisterial levels; someone may be found guilty of causing death by dangerous driving and is made to pay a sizeable fine with a short term of imprisonment or no imprisonment at all, while another is found guilty of manslaughter for carelessly or recklessly operating a piece of heavy machinery which causes the death of another and is given a custodial sentence.
The reader may well be challenged to a round of the “spot the difference” game and lengthy arguments may be made on the technical differences engendered in the wrongs on the basis of judicial precedent, but the lack of uniformity in the dispensation of justice remains comfortably seated in its corner minding its own business in the company of aging ineffectual law and order.
One reason for this is that the punishment is subjective in nature and based on retribution and not correction, it therefore means that it will be interpreted and administered according to the consideration of several factors including the personal perspective of the individual judge, though he or she follows and interprets the law. This discretion is so wide ranging that the anomaly is experienced across the sentencing stratum.
Next we turn to civil matters
A cinematic view of community life in any Caribbean nation would reveal a culture which contains a mixture of stereotypes, prejudices, superstitions and beliefs which often compound the issues of what justice is and what is expected of it in the mind of the average citizen. For example , it is common perception that a woman ‘s birthright is the home and that this right is absolute, her physical right is unquestionable while in her home , however if she is violated in any way while outside her home , perceptions tend to vary as to whether the violations were of her own making or whether she contributed to it by being outside her home( see Caribbean legal educator, Hazel Thompson Ahye-‘ Women and Family law and related issues ‘ for further discussion). This idea among others has extended from the grassroot levels to the Halls of Justice, with consequences ranging from the interesting to the appalling. Mediation comes into the Justice system as a means of tempering the dispensing of justice according to fixed principles and judicial discretions and gives disputants the power to discuss their problems under professional guidance and to come to a resolution of their own making. It also gives a means of hearing to those affected by prejudice and other forms of unreasoned or unreasonable thinking, so that a path to common understanding might be laid. It has been found that parties retain a high level of loyalty to their settlements when reached in this way and that there is better opportunity of conciliation afterwards. The obvious advantage is that there is less burden on the courts to deal with petty matters which often permeate the Magistrates courts and which could be dealt with by mediation. Issues of common corridor littering, noise nuisance, market vending disputes, family disputes concerning common dwelling and other similar problems can be addressed in this manner. The overall benefit to the system of Justice is that the municipal courts are freer to deal with more jurisprudentially substantial issues and that a culture of peaceful resolution is recognized at all levels of the society. The economic side of justice dispensation internationally also favours the use of ADR very strongly and the current trend across Europe with the budget cuts has made it imperative for Governments to find other means of addressing the resolution of disputes. In United Kingdom the Government announced proposals to close 54 County courts and 103 Magistrates courts in order to save some 15.3 million Pounds Sterling in annual operational costs. The Courts Minister Jonathan Djanogly is quoted as saying,” Not all disputes need to be resolved in court . I want to explore whether more people can resolve their disputes in a way that leads to faster and more satisfactory solutions.” Lord Woolf FCIArb,the architect of the major reform of the UK Justice system which lead to new Civil procedure rules in 1998 is also quoted as saying, “ The availability and use of mediation is always important but the present financial situation has made its use, whenever possible, essential. No one can afford to ignore the benefits it offers.” In the Caribbean, Guyana recently passed the Mediation Bill which among other things makes the use of Court connected mediation mandatory for some kinds of disputes. Experience has taught however that it sometimes requires more than the passing of legislation to create a new cultural norm .The application of the law may demand conformity from a party to it but does not translate to wide cultural acceptance of an idea and many examples of this abound worldwide, the ongoing debate over the US case of Roe V Wade ,410 U.S. 113 (1973) points out this idiosyncrasy. There needs to be region wide promotion of the concept of alternative dispute resolution and the particular use of mediation in the court systems and in the communities.
The Dispute Resolution Foundation of Jamaica has continuously proved the worth of ADR for more than a decade in resolving gang issues, community disputes , landlord and tenant and a wide range of issues using mediation, negotiation and conciliation, and is in many ways the leading change agents in the region for ADR. And so we come to the conundrum ; since the Caribbean region has had a strong history of ADR, why has it moved so slowly to embrace ADR as a family member? It may be suggested that ADR as it is now promoted is based on western values and cultural ideas which are foreign to the culture in spite of westernization, and that variations will need to be developed to accommodate the cultural needs of the individuals who approach conflict resolution providers for help.
I know that when many people think of the Caribbean, the immediate images of islands surrounded by sand and sea bathed in sunshine fun and frolic come to mind; that is what we see on TV By extension the exotic jungles of the South America in particular my native land Guyana , the only English speaking country on the continent of South America, may also capture the imagination as a paradise of the kind propagated in the movie Tarzan, very little is known about the cultural intricacies of the region in Western civilization outside of international organizations such as The United Nations and so the substantive issues of community life and conflict ,and of necessity conflict resolution make for a fascinating and important study.
For the purpose of my discourse, I am confined to the fifteen countries which are members of Caricom the formal name of which is the Caribbean Community and which are English speaking with the exception of Suriname and Haiti which are associate members. For further information you may log on to Caricom.org .In order to grasp the concept of this cultural conundrum as I have chosen to call it, we have to take a brief look at the legal system in the region. The English speaking Caribbean inherited much of its cultural norms and its legal system from the British colonizers, so that just like the United States, it has a common law system which is a direct descendant of the English common law system and some of the countries still have close ties to the British since they retain the Privy council as their final court of appeal, others have opted to have the newly created Caribbean Court of Justice as their final Court of Appeal. The history of the region however carries major contributions from the Dutch, Spanish, French and Portuguese as all these super powers from the fifteenth century and onwards colonized all the countries at some point or other and have left significant residue of their legal system in several cases, Guyana for example retains the Dutch land law system and St Lucia, a mixture of French civil law and English common law. The formal resolution of disputes has been rooted in the court system and it is only recently (within the past ten years or so) that widespread recognition has been given to alternative dispute resolution as a formal means of resolving issues. I have used the term ‘formal means of resolving issues’ because ADR is only now receiving official recognition by some countries as a valid means of resolving disputes alongside of the legal system and in many instances as a court connected measure. This is true in countries such as the Cayman Islands, Trinidad, Guyana, Barbados and Jamaica, other countries in the region. The civilization of the Caribbean region was however, created by several different means, first there were the indigenous peoples called Amerindians, then with European colonization there came slavery, which took Africans to the region, and this was followed by Indentureship of natives of Portugal, China and India through formal agreement with their governments and was a paid arrangement to get workers for sugar and rice plantations and other crops. These peoples brought their culture and traditions, their problems and disputes as well as their means of settling disputes. These were termed informal means of dispute resolution, since they did not receive state sanction and were largely ignored as a creole cultural idea which had little to do with the proper regulation of society. These mechanisms thrived in the post slavery period where village elders would be called upon to settle disputes as a panel, or in Amerindian communities, the tribal chief would preside over a matter, headmasters and postmasters were also considered important and respectable persons in whom confidence could be reposed to settle matters. These could range from family disputes to street vending, to livestock and other issues related to common tenancy. In the cities where other issues, such as noise, common rights of way and landlord and tenant problems arose, church leaders were called upon to act as arbiters or mediators as necessary, this was even further delineated by the separate cultural norms of the people who came, the Chinese had their own methods for their internal disputes, the Indians would use the Hindu priest, the Muslims would have the head of the Mosque, Africans would have their religious elders . Caribbean civilization and culture from its inception has always had some form of dispute resolution which has been indigenous to its different populations. Modern times however saw the westernization of ideas which deemed cultural forms of dispute resolution to be old fashioned and saw a heavy dependence on the court system.
We now come to some of the current problems in the areas of society for which alternative dispute resolution may have some answers.
As a result of the westernization of ideas and the dependence on the courts to settle all disputes there has been tremendous overburdening of the justice system. And this is discussed in the article on Restorative justice which deals of course with criminal matters
Crime and the punishment of it has had a standard form regionally with some variations in the form of the application of the death penalty or life imprisonment for serious and heinous crimes, but within the usual schemata of imprisonment or fining (determinate sentencing) for wrongdoing. World trends today suggest that some developed countries as well as developing ones are pressed by the necessity to find alternatives to the traditional scheme of justice dispensation.
This is not simply the result of the musings of well-paid researchers whose sociological theories, however abstract, manage to find favour with the aspiring intellectual elite in governments and so are visited upon the unsuspecting populace who have little means of extricating themselves. The fact is that criminal law has always struggled to balance the issuance of punishment with the offence, as can be seen throughout the development of the common law as it has sought to adjust with the changing times.
A simple example of this would be the constant complaints that we hear about the sentences given in the courts both at the superior and magisterial levels; someone may be found guilty of causing death by dangerous driving and is made to pay a sizeable fine with a short term of imprisonment or no imprisonment at all, while another is found guilty of manslaughter for carelessly or recklessly operating a piece of heavy machinery which causes the death of another and is given a custodial sentence.
The reader may well be challenged to a round of the “spot the difference” game and lengthy arguments may be made on the technical differences engendered in the wrongs on the basis of judicial precedent, but the lack of uniformity in the dispensation of justice remains comfortably seated in its corner minding its own business in the company of aging ineffectual law and order.
One reason for this is that the punishment is subjective in nature and based on retribution and not correction, it therefore means that it will be interpreted and administered according to the consideration of several factors including the personal perspective of the individual judge, though he or she follows and interprets the law. This discretion is so wide ranging that the anomaly is experienced across the sentencing stratum.
Next we turn to civil matters
A cinematic view of community life in any Caribbean nation would reveal a culture which contains a mixture of stereotypes, prejudices, superstitions and beliefs which often compound the issues of what justice is and what is expected of it in the mind of the average citizen. For example , it is common perception that a woman ‘s birthright is the home and that this right is absolute, her physical right is unquestionable while in her home , however if she is violated in any way while outside her home , perceptions tend to vary as to whether the violations were of her own making or whether she contributed to it by being outside her home( see Caribbean legal educator, Hazel Thompson Ahye-‘ Women and Family law and related issues ‘ for further discussion). This idea among others has extended from the grassroot levels to the Halls of Justice, with consequences ranging from the interesting to the appalling. Mediation comes into the Justice system as a means of tempering the dispensing of justice according to fixed principles and judicial discretions and gives disputants the power to discuss their problems under professional guidance and to come to a resolution of their own making. It also gives a means of hearing to those affected by prejudice and other forms of unreasoned or unreasonable thinking, so that a path to common understanding might be laid. It has been found that parties retain a high level of loyalty to their settlements when reached in this way and that there is better opportunity of conciliation afterwards. The obvious advantage is that there is less burden on the courts to deal with petty matters which often permeate the Magistrates courts and which could be dealt with by mediation. Issues of common corridor littering, noise nuisance, market vending disputes, family disputes concerning common dwelling and other similar problems can be addressed in this manner. The overall benefit to the system of Justice is that the municipal courts are freer to deal with more jurisprudentially substantial issues and that a culture of peaceful resolution is recognized at all levels of the society. The economic side of justice dispensation internationally also favours the use of ADR very strongly and the current trend across Europe with the budget cuts has made it imperative for Governments to find other means of addressing the resolution of disputes. In United Kingdom the Government announced proposals to close 54 County courts and 103 Magistrates courts in order to save some 15.3 million Pounds Sterling in annual operational costs. The Courts Minister Jonathan Djanogly is quoted as saying,” Not all disputes need to be resolved in court . I want to explore whether more people can resolve their disputes in a way that leads to faster and more satisfactory solutions.” Lord Woolf FCIArb,the architect of the major reform of the UK Justice system which lead to new Civil procedure rules in 1998 is also quoted as saying, “ The availability and use of mediation is always important but the present financial situation has made its use, whenever possible, essential. No one can afford to ignore the benefits it offers.” In the Caribbean, Guyana recently passed the Mediation Bill which among other things makes the use of Court connected mediation mandatory for some kinds of disputes. Experience has taught however that it sometimes requires more than the passing of legislation to create a new cultural norm .The application of the law may demand conformity from a party to it but does not translate to wide cultural acceptance of an idea and many examples of this abound worldwide, the ongoing debate over the US case of Roe V Wade ,410 U.S. 113 (1973) points out this idiosyncrasy. There needs to be region wide promotion of the concept of alternative dispute resolution and the particular use of mediation in the court systems and in the communities.
The Dispute Resolution Foundation of Jamaica has continuously proved the worth of ADR for more than a decade in resolving gang issues, community disputes , landlord and tenant and a wide range of issues using mediation, negotiation and conciliation, and is in many ways the leading change agents in the region for ADR. And so we come to the conundrum ; since the Caribbean region has had a strong history of ADR, why has it moved so slowly to embrace ADR as a family member? It may be suggested that ADR as it is now promoted is based on western values and cultural ideas which are foreign to the culture in spite of westernization, and that variations will need to be developed to accommodate the cultural needs of the individuals who approach conflict resolution providers for help.
Monday, October 3, 2011
The Virtual Magistrate; An old idea for a New Caribbean cyberspace (part 1
By Abiola Inniss LLB, LLM, ACIArb
As the Caribbean region struggles to find its own space in the world of virtual business transactions, the issues of transparency, efficiency and dispute resolution have become major difficulties in the development of international business relations and the growth of the region as a whole. The example of South East Asia where significant effort has been dedicated to the development of technological and other resources, and where in the aftermath of war and disaster astounding progress has been observed, ought to provide a catalyst to the notion that the region can yet accomplish significant development if the necessary attention is given to the critical areas with the intention of resolving these problems.
The use of Alternative Dispute Resolution techniques such as online arbitration and online mediation have been tried and proven and many models are in use around the world by individual companies and groups which provide a fee based service. It is here proposed that the Caribbean region needs a single comprehensive online ADR institution which must be grounded in the principles of Private International Law, Cyberspace law and the Law of International Trade in order to withstand the rigours of both international trade and scrutiny, and to meet the standards of judicial competence required of a regional institution. The idea of the Virtual Magistrate is revisited here.
On May 22, 1996, the National Center for Automated Information Research (NCAIR) of the USA held a conference on On-Line Dispute Resolution in Washington, D.C. The conference brought together experts from the Cyber law Institute (CLI), Georgetown University, American Arbitration Association (AAA), Villanova Center for Information Law and Practice and MCI. These experts discussed and designed regulations for the first active online ADR system on the Internet and gave birth to the Virtual Magistrate (VM), the first online dispute resolution facility. It was jointly managed by the Villanova Center for Information Law and Policy, the Cyberspace Law Institute and the American Arbitration Association. The idea behind this project was to develop a response to what was perceived as the immediate global need for dispute resolution mechanisms in cyberspace, in what was then a fledgling but rapidly developing and exciting sector. VM was an experimental project which was intended to measure the use of online arbitration mechanisms for online disputes and to gauge the effectiveness of such a system and whether online users would utilize it. VM was also intended to provide Internet service providers (ISP) with informed and neutral judgments on appropriate responses when making decisions which involved allegations of copyright infringement or defamation. The Virtual Magistrate project offered arbitration to individuals who use online services, systems operators and people who claim to be harmed by wrongful messages, postings and files. The administrators had systems operators in mind when developing this project. Administrators projected that ISPs would use VM decisions as a basis for their contracts and that they would place an arbitration clause in their contracts. VM also considered cases which were directly related to online activities or commerce dealing with compensation or financial obligations.
The Magistrates were selected by the AAA and the Cyberlaw Institute Subcommittee and were paid volunteers randomly selected when a case was accepted. Magistrates needed to be familiar with relevant legal principles as well as technical issues that they could encounter.
When a party wanted to apply for service they had to fill out a complaint form located on the VM’s webpage. The complaint asked for a description of the action, objection to the activity and information about the other person. The complaint was then reviewed by the AAA who, if necessary, would request additional information about the complaint, then secure a participation agreement from both parties. After the necessary documents were secured the AAA would assign Magistrates to the case. The VM tried to resolve all disputes within 72 hours of both parties agreeing to participate.
Communication between the Magistrate and the parties would take place on a designated listserv/newsgroup (“grist”). All participants received a password for access to the grist, where the decision would be posted. In some cases, it may have been necessary for the Magistrate to communicate privately with a party; in these cases communication would take place via the Magistrate’s private e-mail.
VM also decided whether reasonable action should be taken by the systems operator; such as deleting, masking or restricting access to a message, file or posting. If necessary the Magistrate could decide whether access should be denied to certain parties.
The Virtual Magistrate project expected system operators to support and enforce all decisions just as they would in private arbitration. All decisions were made public unless otherwise deemed by the Magistrate. The first decision of the Virtual Magistrate is available here: http://www.interesting-people.org/archives/interesting-people/199605/msg00054.html.
This initial project though it contained many of the basic ideas necessary for the resolution of disputes at the time of its actualization in 1996 and was based on a concept of universality, could not fulfill a global need because of the difficulties involving any attempt to ground it to any particular legal system or systems. It therefore dissolved having created the groundwork for a number of individual mechanisms which are now used worldwide in the resolution of online disputes.
The Caribbean region is in the unique position to create a model for online dispute resolution which goes much further than the Virtual Magistrate project of 1996 and which can encompass the concept of an online international tribunal.
As the Caribbean region struggles to find its own space in the world of virtual business transactions, the issues of transparency, efficiency and dispute resolution have become major difficulties in the development of international business relations and the growth of the region as a whole. The example of South East Asia where significant effort has been dedicated to the development of technological and other resources, and where in the aftermath of war and disaster astounding progress has been observed, ought to provide a catalyst to the notion that the region can yet accomplish significant development if the necessary attention is given to the critical areas with the intention of resolving these problems.
The use of Alternative Dispute Resolution techniques such as online arbitration and online mediation have been tried and proven and many models are in use around the world by individual companies and groups which provide a fee based service. It is here proposed that the Caribbean region needs a single comprehensive online ADR institution which must be grounded in the principles of Private International Law, Cyberspace law and the Law of International Trade in order to withstand the rigours of both international trade and scrutiny, and to meet the standards of judicial competence required of a regional institution. The idea of the Virtual Magistrate is revisited here.
On May 22, 1996, the National Center for Automated Information Research (NCAIR) of the USA held a conference on On-Line Dispute Resolution in Washington, D.C. The conference brought together experts from the Cyber law Institute (CLI), Georgetown University, American Arbitration Association (AAA), Villanova Center for Information Law and Practice and MCI. These experts discussed and designed regulations for the first active online ADR system on the Internet and gave birth to the Virtual Magistrate (VM), the first online dispute resolution facility. It was jointly managed by the Villanova Center for Information Law and Policy, the Cyberspace Law Institute and the American Arbitration Association. The idea behind this project was to develop a response to what was perceived as the immediate global need for dispute resolution mechanisms in cyberspace, in what was then a fledgling but rapidly developing and exciting sector. VM was an experimental project which was intended to measure the use of online arbitration mechanisms for online disputes and to gauge the effectiveness of such a system and whether online users would utilize it. VM was also intended to provide Internet service providers (ISP) with informed and neutral judgments on appropriate responses when making decisions which involved allegations of copyright infringement or defamation. The Virtual Magistrate project offered arbitration to individuals who use online services, systems operators and people who claim to be harmed by wrongful messages, postings and files. The administrators had systems operators in mind when developing this project. Administrators projected that ISPs would use VM decisions as a basis for their contracts and that they would place an arbitration clause in their contracts. VM also considered cases which were directly related to online activities or commerce dealing with compensation or financial obligations.
The Magistrates were selected by the AAA and the Cyberlaw Institute Subcommittee and were paid volunteers randomly selected when a case was accepted. Magistrates needed to be familiar with relevant legal principles as well as technical issues that they could encounter.
When a party wanted to apply for service they had to fill out a complaint form located on the VM’s webpage. The complaint asked for a description of the action, objection to the activity and information about the other person. The complaint was then reviewed by the AAA who, if necessary, would request additional information about the complaint, then secure a participation agreement from both parties. After the necessary documents were secured the AAA would assign Magistrates to the case. The VM tried to resolve all disputes within 72 hours of both parties agreeing to participate.
Communication between the Magistrate and the parties would take place on a designated listserv/newsgroup (“grist”). All participants received a password for access to the grist, where the decision would be posted. In some cases, it may have been necessary for the Magistrate to communicate privately with a party; in these cases communication would take place via the Magistrate’s private e-mail.
VM also decided whether reasonable action should be taken by the systems operator; such as deleting, masking or restricting access to a message, file or posting. If necessary the Magistrate could decide whether access should be denied to certain parties.
The Virtual Magistrate project expected system operators to support and enforce all decisions just as they would in private arbitration. All decisions were made public unless otherwise deemed by the Magistrate. The first decision of the Virtual Magistrate is available here: http://www.interesting-people.org/archives/interesting-people/199605/msg00054.html.
This initial project though it contained many of the basic ideas necessary for the resolution of disputes at the time of its actualization in 1996 and was based on a concept of universality, could not fulfill a global need because of the difficulties involving any attempt to ground it to any particular legal system or systems. It therefore dissolved having created the groundwork for a number of individual mechanisms which are now used worldwide in the resolution of online disputes.
The Caribbean region is in the unique position to create a model for online dispute resolution which goes much further than the Virtual Magistrate project of 1996 and which can encompass the concept of an online international tribunal.
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